Name: Lavernya A/P Bala Subramaniam Matrix No.: A166528 Firm No.
: 11
Mohammad Hezat A Hamed & Ors v PP [2020] MLRHU 823
High Court Malaya, Johor Bahru
A. Facts:
The applicants are the 1st and 2nd accused in the trial. The prosecution had closed their case
in the trial and parties had been instructed to file written submissions at the end of the
prosecution case. Before this court delivered a decision at the end of the prosecution case, the
applicants filed an application ("the first application") seeking an order to obtain a copy of the
recorded statement of a witness. This witness was not called to give evidence during the
prosecution stage. However, the witness was offered to the defence at the end of the
prosecution case. The first application by the applicants was made pursuant to S.112 of CPC
and S.32 of Evidence Act 1950 (“EA”). This court dismissed the first application with the
following reasons:
“S.32 EA relates to a dead or who cannot be found, or who has become incapable of giving
evidence, or whose attendance cannot be procured without an amount of delay or expense.
This court was of the view that S.32 EA would not be applicable in this case as it was not
proven that the witness was incapable of giving evidence. The prosecution had offered the
witness to the defence and the defence had accepted the offer. Therefore, the witness would be
able to give evidence in person.”
Subsequently, on 31 May 2020, this court called for the defence to be entered in the trial.
The applicants on 22 June 2020 filed another application (“this application”) seeking this court
to order a copy of the recorded statement of a witness called Mohd Amin bin Yunus (“the
witness”) to be served on the defence. The applicants sought an order that the recorded
statement of the witness was to be served on the defence prior to the commencement of the
defence case.
B. Issue(s): S.51 CPC & S.112 CPC
1. Whether the application for an order to obtain a copy of a recorded statement of a witness to be
served on the defence during trial ought to be allowed?
C. Applicant’s Counsel Submissions:
1. This application is made pursuant to S.51 of CPC and after the accused has been asked to enter
his defence in the ongoing trial.
2. The witness was a witness which was offered to the defence by the prosecution.
3. The recorded statement of the witness was required by the counsel to prepare their defence for
the trial as the offence carries a mandatory death sentence.
4. The facts of this application could be distinguished from the case of Husdi v Public Prosecutor
[1979] 2 MLJ 304 and Dato' Sri Mohd Najib Hj Abdul Razak v. PP [2019] 4 MLJ 180; [2019]
5 CLJ 23. In this application, the application was made after the applicants were called to make
their defence. In the case of Husdi v. Public Prosecutor [1979] and Dato' Sri Mohd Najib Hj
Abdul Razak v. PP [2019], the application for the recorded statement was made prior to the
commencement of the trial.
5. This application was made similar to the case of Siti Aisyah v. Public Prosecutor [2019] 4 MLJ
46 – when the witnesses were offered to the defence at the end of the prosecution case. The
learned Deputy Public Prosecutor on behalf of the respondent opposed the application to obtain
the recorded statement of the witness. In support of her argument, the learned Deputy Public
Prosecutor relied on the case of Husdi v. Public Prosecutor [1979] which stated that the
recorded statement is a privileged document and further argued that the application made by
counsel was a 'fishing expedition'.
D. Judgement & Reason: (To examine the issue, first need to consider the relevant
provisions)
1. S.112 CPC (Examination of Witnesses by Police)
A police officer making an investigation to examine orally any person is empowered by
subsection 112(1) CPC to be acquainted with the facts and circumstances of the case and shall
reduce in writing any statement by the person examined. (Referred: Husdi v. Public Prosecutor
[1979])
2. S.51 CPC (Summons to Produce Document or Other Things)
Gives the court discretion whether or not to allow the production of documents. Hence, the
production of any document or other material in the possession of the prosecution which the
accused has sought for is entirely at the discretion of the court, taking into consideration justice
of the case.
3. In Husdi v. Public Prosecutor [1979], the application for the recorded statement of the witness
was made before the trial had begun. FC held that once a police statement is held to be
absolutely privileged, 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. Hence, defence is not entitled to be supplied with
police statements.
4. In Dato' Sri Mohd Najib Hj Abdul Razak v. PP [2019], the defence had applied to obtain the
recorded statement of a witness before the commencement of the trial. The COA held that the
document could not be given to the defence at the pre-trial stage.
5. Facts of this case is similar with Siti Aisyah v. Public Prosecutor [2019], the COA allowed the
application for the recorded statement of 7 witnesses as it was found that there is no danger of
tempering with the witness, as the application was made after the applicants were called to
enter their defence at the end of the trial.
6. THERFORE, in order for this court to allow this application, the applicants need to satisfy this
court on the dual requirements of necessity and desirability (“dual requirements”) as stated in
Siti Aisyah v. Public Prosecutor [2019].
7. In this application, counsel for the applicant was asked to demonstrate to this court if the dual
requirements had been fulfilled. However, the counsel failed. Thus, this court was tasked to
look into the facts of this application and consider if the dual requirements had been fulfilled.
8. The facts reveal that the witness was offered to the defence at the end of the prosecution case.
The defence accepted the offer of the witness. The witness is alive and able to come to court
and give evidence. None of the circumstances of s 32 of the Evidence Act 1950 are applicable
to this witness. Therefore this court finds there is no necessity and desirability to serve his
recorded statements to the applicants. The dual requirements under S.51 CPC had not been
fulfilled by the applicants. Hence, this application must fail and this application is dismissed.
