LAW611-CRIMINAL PROCEDURE CODE II
ASSIGNMENT 1
CLASS:
LWH08D
PREPARED BY:
FIRM 1
NAME STUDENT ID
Wan Miskiah Wan Mahmood 2020978493
Muhammad Asyraf Muhammad Dimyati 2020978511
Muhammad Iman Haiqal Tahiruddin 2019811068
Raja Nur Athirah Raja Arshad 2020988283
Nurhanan Maisarah Mohd Lotfi 2019847818
PREPARED FOR:
MAZLIFAH BINTI MANSOOR
SUBMISSION:
5 JANUARY 2025
QUESTION A
The main issue is whether I, as Jupiter, would grant leave to impeach Joni.
Impeachment can be defined as a call of question on the truthfulness of a witness by
way of adducing evidence to show that the witness is unworthy of belief. In the case of
Murugan a/l Arumugam v Public Prosecutor [2013] 3 MLJ 345 CA, it is stated that an
impeachment proceeding is at the behest of the party who is faced with a hostile witness.
“Hostile witness” in other words is when the testimony given by a witness is unfavourable to
the calling party.
In regards to impeachment, it is governed by Section 155 of Evidence Act 1950
(EA). It is provided under subsection (c) of the provision that the credit of a witness may be
impeached by way of by proof of former statements inconsistent with any part of his
evidence. It must also be noted that on application of impeachment, Section 155 of EA must
be read together with Section 145 of EA. As per Section 145, there are 3 elements that need
to be fulfilled. The elements are; (1) it must be made of that witness, (2) former
statements are extraneous to the trial and (3) serious/material affecting his credit.
Applying the relevant provisions above, Joni must fulfill all the elements under
Section 145 in which firstly, Joni made the statement himself when investigated by Inspector
Beta.
Secondly, the former statement made by Joni is extraneous to the trial. This is because
his statement contradicted his testimony in court. On 13 May 2023, Joni gave his statement to
Inspector Beta as a recording officer. Joni stated in his statement that he saw a man raped a
woman in a backseat and the man was recognized by him where he stated that the man was
the son to his mom’s childhood friend. He further said that the nickname of the man is “Yop”.
However, on 12 July 2023, he testified during cross-examination that he was not so sure
about the identity of the man who raped the woman. He said that the man might be Kopi or
not because the last time he saw the Kopi was when he was younger and there were changes
in appearance of the Kopi back then. Thus, it is clearly seen that Joni’s former statement is
extraneous to the trial.
The third element is regarding discrepancies and it must also be discussed prior to
impeachment because the court must look judicially to see whether the difference is serious
as to suggest the credibility of witnesses. There are three contradictions namely minor,
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apparent and serious/material contradiction. In Muthusamy v Public Prosecutor [1948] MLJ
57, a witness gave a statement “I saw A, B, C and one Mansoor there” but then testified “all
the present witnesses were there, but I did not notice Mansoor as there were many people
there”. The court held that a mere omission is not a serious difference or discrepancy. It is due
to the police statement being much briefer as it is based on question and answer. It was
further decided that minor differences are attributable mainly in interpretation and it
sometimes differs in recollection of memory. Moreover, in Pathmanabhan a/l Nalliannen v
Public Prosecutor and other appeals [2017] 3 MLJ 141, the court held that if the
discrepancy is not material to the root of the issue, the court shall not grant a leave for
impeachment.
In application, Joni's statement where it is contradictory to his testimony is not a
serious/material difference. It is because Joni is just in ambiguity of the identity of Kopi. This
makes sense because he mentioned that he met Kopi when he was younger. The fact that Joni
could still recognize Kopi from his recollection of memory is plausible because one’s
appearance let alone face features would not be much affected by his age. The root of the
issue is whether Kopi rape Anje. Joni’s testimony corroborates Dr. Kemist’s evidence where
the semen (P1) matched with Kopi’s DNA profile (P7). The mere omission by Joni being
uncertain of Kopi’s identity is not material to the root of the issue. It is an apparent difference
since Joni still said that it could be Kopi that rape Anje. Joni’s statement of him seeing a man
rape Anje in the backseat of a car is the main concern since it corroborates other evidence
which strengthens the prosecution case. The inconsistency of Joni in his statement and his
testimony, again, is not material to the root of the issue.
The conclusion to the discussion is I, as Jupiter, would not grant leave to impeach
Joni.
QUESTION B
As Kopi’s legal counsel, I would advise that Kopi has no case to answer for the
charge filed against him.
A submission for no case to answer can be carried out when either of these
requirements are fulfilled. The requirements are; (i) when there is no evidence to prove an
important element to the alleged offence; or (ii) when the evidence adduced by the
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prosecution has been discredited during cross-examination or the evidence is unreliable. In
the case of PP v. Sidek Bin Abdullah [2006] 3 MLJ 357, these conditions were established.
Furthermore, section 173(f)(i) and (ii) of the Criminal Procedure Code (CPC) state that at
the end of the prosecution's case, the court shall consider whether a prima facie case has been
established by the prosecution and, if not, the court may acquit the accused. The accused may
be called to provide their defence under section 173(h) and (l) of the CPC if the court
determines that a prima facie case has been established. The essential requirement is that the
evidence must be evaluated by the court using its greatest evaluation. This is to assess the
reliability of the prosecution's witnesses and to ensure that all components of the alleged
offence have been met, as required by the decision in Mr Losali v PP [2011] 4 MLJ 694 CA.
Firstly, the evaluation procedure to determine whether the elements of the accused
offence have been met. Failure to ensure that all elements of the alleged offence are met
would result in the case not being a prima facie case. Currently, the accused offence is rape,
which is punishable under section 376 of the Penal Code. The elements of rape in section
375 are sexual intercourse between a man and a woman, penetration, and it is done without
the victim's consent and it can be supported with the case of Mohd Zulkarnain Bin Abdul
Razak v PP [2019] MLJU 359, where the court had followed the requirements stated in the
Penal Code to prove rape.
Referring to the facts provided, Kopi is the owner of the vehicle PQB 73. Teh
identified the vehicle as the location of the offence in his testimony to the police. Since Joni,
another witness who is stating the same thing as Teh to Inspector Beta, their statements can
be corroborated. The statements made by Teh and Joni do not satisfy the requirements for the
alleged charge, which is that Kopi and Anje must have engaged in sexual activity. Their
claims simply establish that Kopi's vehicle was utilised for the offence; they do not provide
any concrete proof that places Kopi at the scene of the crime. Following that, Dr. Medik's
report revealed that Anje had been raped, since he had discovered fresh lacerations on her
private parts. Dr. Medik next took a vaginal swab (P3) and he also verified Teh and Kopi are
physically competent to have sexual intercourse. Despite this, according to Dr. Kemist's
report, the element of rape is still not fulfilled. In the report, the semen (P1) from vehicle no.
PQB 73 is a matched to Kopi's DNA profile (P7), however this does not imply that Kopi had
sexual relations with Anje as P1 was found in the car and not from Anje. The evidence
collected from Anje shows the presence of semen from an unknown person (X1) collected
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from Anje's vaginal swab (P3). Therefore, the evidence collected does not prove that Kopi
had rape Anje but merely shows that Anje was rape by a man. As to the case of Perisamy s/o
Sinnappan & Anor v PP [1996] 2 MLJ 557, when the elements of rape are not fulfilled, the
prosecution may fail in proving a prima facie case.
Secondly, the evidence must establish that there is a nexus between the accused and
the offence as to the case of PP v Hanif Basree [2007] 2 CLJ 33, where when there is a
failure to establish the nexus between the accused and the offence, no prima facie is
established. Currently, by using the report by Dr. Medik, Kopi is physically capable of having
sexual intercourse. Hence, Kopi can have sexual intercourse with Anje but it does not prove
that he had raped her. Further supported by Dr. Kemist’s report about the semen found in the
car (P1) where it was proven to be a match to Kopi’s DNA (P7) but it does not match the
semen found in the vaginal swab from Anje (P3). This evidence had cast doubt on whether
Anje was rape by Kopi as Kopi’s DNA does not match the sample taken from P3. Other than
that, the pubic hair (P2) found in Kopi’s car had match with Anje’s DNA profile (P5). This
shows that Anje had indeed rape inside Kopi’s car but does not prove that the rapist is Kopi.
Therefore, the nexus between Kopi and the offence cannot be established as the evidence of
P3 had cast doubt on whether Kopi had rape Anje.
In conclusion, the prosecution had failed to satisfy the elements of rape and failed to
establish a nexus between Kopi and the alleged offence. Therefore, the prosecution did not
manage to prove a prima facie case against Kopi; this would allow Kopi to make a
submission for a no case to answer at the end of the prosecution’s stage.
QUESTION C
The issue is whether I, as Jupiter, should convict or acquit Teh with accordance to the
Criminal Procedure Code (CPC).
If I were Jupiter, I would acquit Teh as DPP Tom failed to establish the case against
Teh beyond reasonable doubt. As per Section 173(m)(i) CPC, before determining to convict
or to acquit, all evidence adduced need to be assessed by the court and decide whether the
prosecution has proven its case beyond reasonable doubt. This is further affirmed in Sochima
Okoye v PP [1995] 1 MLJ 538, where the court held that the general burden of proof
throughout the trial is on the prosecution to prove beyond reasonable doubt the guilt of the
accused. Hence, a maximum evaluation of the evidence needs to be conducted by Jupiter as
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per the case of PP v Mohd Radzi bin Abu Bakar [2006] 1 CLJ 457 which involves the court
to consider a few elements.
The first requirement to establish beyond reasonable doubt is that every element or
single ingredient of the offence is made out. In this case, Teh was charged with offence of
rape under Section 376 of Penal Code. The elements of the offence are provided under
Section 375 of PC where there must be penile penetration into the woman vagina. In this
case, there is penetration in Anje’s vagina. This is based on medical examination by Dr
Medik, Anje had fresh lacerations on her private parts which were still bleeding and based on
Dr Kemist’s report, an unidentified person’s semen found in Anje’s vaginal swab (P3). There
were also semen found on Anje’s thigh that matched with DNA of Teh. Hence, based on this
evidence, it shows there was penetration into Anje’s vagina.
The next element is the penetration made is without consent. In the present case, the
penetration is made without Anje’s consent can be seen from Anje’s testimony where she was
dragged to the back of her car seat and was raped. Further, the assailant flee from the crime
scene after being shouted at by Constable Omega strongly shows that the penetration was
made without Anje’s consent. To conclude, the penetration made into Anje’s vagina is
amounted to rape.
The second requirement is that a nexus must be established between Teh and the
offence for him to be liable. To start with is Anje’s testimony that there is an emission spills
on her thigh after the second rape which later identified by Dr Kemist that the emission
matches with Teh’s blood sample (P6). This can be inferred that Teh was in a close proximity
to Anje and her body i.e, her thigh. For the emission to be on Anje’s thigh, Teh need to on top
of Anje’s body and ejaculated whereby this can be only happened if Teh is sexually
stimulated. Hence this could infer that the emission on Anje’s thigh is due to the spills from
the penetration made by Teh. Nonetheless, further evidence needs to be evaluated as Teh
could cast doubt on whether he is the assailant as pursuant to Inspector Gama identification
parade report, Anje failed to identify Teh.
This can be corroborated by Constable Omega’s testimony whereby he saw a couple
having sex at the carpark, and a man fleeing from the scene after being shouted at, later found
hiding under the staircase and identified as Teh. This can be inferred that during the time of
the alleged offence, Teh was in a close proximity to the crime scene area and has the access
and opportunity to rape Anje. Nonetheless, further evaluation must be made as Teh’s mere
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presence is not adequate to prove his guilt. This is because, Constable Omega failed to
exactly identify the assailant face during the rape occur as he only see a couple were having
sex and could only identify Teh after found him hiding under the staircase, thus this alone
could not prove Teh’s guilt.
Pertaining to the presence of Teh’s semen (P6) on Anje’s thigh by Dr Kemist, it can
be inferred that there were some forms of sexual activity made by Teh against Anje whereby
his semen found on Anje’s thigh. This can be supported by Dr Medik examination which he
examines that Teh did have some forms of sexual activity as his underwear was still wet with
recent emission and Anje had fresh lacerations on her private parts. Therefore, it can be
inferred that Teh did penetrate his penis into Anje’s private parts.
Nonetheless, pursuant to Dr Kemist testimony, which had semen of an unidentified
person (X1) (P3) is sufficient to raise reasonable doubt. As the semen of an unidentified
person belongs to a third-party DNA, reasonable doubt could be cast on who exactly
committed sexual intercourse with Anje. Pursuant to PP v Hanif Basree [2008] 4 CLJ 1, the
court ruled that the presence of an unknown person in the deceased's vagina, along with the
DNA of the accused, raised doubts about the murderer, resulting in no prima facie case and a
nexus between the accused and the crime. Hence, as there are two unidentified person’s
semen, a cast of doubt could be raised on who committed the offence. Therefore, the second
element is not fulfilled as there is an insufficiency of evidence in proving the nexus between
Teh and the offence of rape.
The third requirement for evidence is accuracy and credibility, as per Looi Kow Chai
[2003] 2 MLJ 65. The presence of Teh at the crime scene, determined by Constable Omega
through identification parade, is relevant under Section 9 Evidence Act same goes to the
evidence of semen on Anje's thigh (P4). These two pieces of evidence are admissible as
direct evidence. Next, the testimonies of Dr Medik and Dr Kemist are admissible under
Section 45 EA as an expert opinion. Upon acceptance of its admissibility, evidence of Dr
Medik is relevant to show the state of things under Section 7 where Dr Medik explains the
physical condition of Anje’s private part. Moreover, the DNA profiling report issued by Dr
Kemist is also admissible under Section 399 CPC as an expert report because Dr Kemist, as
a maker of the report is present in the court to testify.
Nonetheless, Anje's evidence might not be admissible as she failed to identify who the
assailants were during the identification parade. Hence, Anje’s evidence needs to be
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corroborated as her evidence alone will not be credible. Looking into the evidence submitted,
it can be said that there is no clear evidence that Teh had raped Anje as there is no sufficient
evidence that penetration occurred was made by Teh.
Therefore, as per Mat v PP [1963] 1 MLJ 283, as the prosecution has failed to
establish a beyond reasonable doubt case against Teh whereby he could cast a doubt on who
committed the crime as there is an existence of semen of unidentified person in Anje’s
vagina, therefore Jupiter should acquit Teh.
Succinctly, I, Jupiter, would have acquitted Teh as per Section 173(m)(i) CPC.
QUESTION D
Whether Kopi has any grounds to appeal against his conviction by Jupiter?
The first ground is that Jupiter had made an adverse inference against Kopi.
According to s. 114 (g) of the EA, the court is permitted to presume evidence which could be
and is not produced would, if produced, be unfavourable to the person who withholds it.
Before the presumption may be invoked, it must be proved that the evidence withheld is
material evidence. In this situation, Jupiter had made a presumption under s. 114 (g) of EA
that Kopi had a nexus for the offence of rape of Anje based on his denial that he was framed
by Inspector Beta.
The court may not draw a presumption of adverse inference if the evidence withheld
is not material to the case. However, in Goh Ah Yew v PP [1949] 1 MLJ 150, no such
inference can be drawn against an accused in a criminal trial. The accused bears no duty to
call any evidence and is at liberty to offer evidence or not to what he thinks proper, and no
inference unfavourable to him can be drawn because he adopts one course rather than the
other. This means that no adverse inference can be drawn against Kopi as he is at liberty to
offer evidence to what he thinks proper to cast doubt on the prosecution case.
Likewise, section 257(2) of the CPC also states that the prosecution must not make
the failure of any accused to give evidence the subject of adverse criticism. In Rozi Ramli v
PP (1997) 3 CLJ 479, no adverse comment should be made to convey the impression that
failure to give evidence is inconsistent with innocence or that the only reasonable inference is
guilt. Jupiter should not have made any adverse inference against Kopi and later convicted
him because he found that Kopi had not established his innocence. By saying that, Jupiter had
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made adverse comments that strongly indicated that he had pre-determined the guilt of Kopi
before considering all the evidence before him.
Based on the facts, Jupiter did not allow Kopi to provide any witnesses to be called to
support his contention that he was framed. Kopi should have the right to call any witnesses to
support his contention and Jupiter’s action not allowing that is an error in law.
Therefore, Jupiter had erred in convicting Kopi by making an adverse inference
against Kopi. Hence, Kopi can appeal on the grounds of adverse inference made against him.
The second ground is that there is a doubt in the prosecution’s case. In Radhi Yaakob
v PP [1991] 3 CLJ, All that an accused person needs to do is to raise a reasonable doubt.
There is no duty cast upon the defence in a criminal case to call any evidence. This would
mean that Kopi needed only to cast doubt in his defence. Based on the evidence provided,
there are doubts in the prosecution’s case. This can be seen in Dr Kemist’s evidence whereby
the semen (P1) from vehicle no. PQB 73 is a matched to Kopi's DNA profile (P7), however
this does not imply that Kopi had sexual relations with Anje as P1 was found in the car and
not from Anje. The evidence collected from Anje shows the presence of semen from an
unknown person (X1) collected from Anje's vaginal swab (P3).
There is a a high probability that there is doubt in prosecution’s case as there is
ambiguity whether Kopi had committed rape. In PP v Krishna Rao [2000] 1 MLJ 274, a
reasonable doubt means that it does not reach certainty, but it must carry a high degree of
probability. Since there is a doubt in the prosecution’s case, Kopi has a ground for an appeal
for Jupiter’s judgement.
In conclusion, there are two possible grounds for Kopi to appeal as stated above.
QUESTION E
The first issue is whether there is an irregularity or illegality in relation to Joni’s
conviction under Section 193 of the Penal Code (PC).
Initially, Section 376 of the Criminal Procedure Code (CPC) stipulates that the
Attorney General functions as the Public Prosecutor (PP), thereby exercising control and
supervision over all criminal proceedings governed by the CPC. The Deputy Public
Prosecutors (DPP), appointed by the PP according to Section 376(3) of the CPC, possess the
authority to exercise rights and powers vested in or exercisable by the PP, subject to certain
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exceptions, while operating under the general control and direction of the Public Prosecutor.
In instances where specific legislation mandates it, the PP or the DPP, acting on behalf of the
PP, must provide consent or sanction for the commencement of prosecution. The absence of
such consent or sanction would result in the court being unable to take cognisance of the
case. As illustrated in the case of PP v Lew Koy (2001) 4 MLJ 655, the absence of sanction
would deprive the court of the jurisdiction to hear the case.
In this situation, Joni was charged for an offence punishable under s. 193 by the DPP
and by referring to Section 129(1)(b) CPC, for prosecution to be instituted and for the court
to take cognisance of an offence under Section 193, it would require the prior sanction of the
PP. Additionally, the sanction needs to be in writing as per Section 129(3) CPC. This means
that there must be prior written sanction provided by the DPP as upheld in PP v Lew Koy.
Since there has been an absence of a sanction, this would mean that the Court is not allowed
to take cognisance of Joni’s offence under s. 193. Therefore, there is an irregularity.
However, DPP may reply to the defense’s objection and the court may have
jurisdiction to continue proceedings if the charge can be cured under Section 422 of CPC.
Subsequently, the second issue is deciding whether the situation can be cured or not.
One way to address a lack of consent or sanction is through the alter ego doctrine.
According to this principle, the presence of the PP or DPP in court can compensate for the
absence of explicit consent or sanction, implying an implicit approval. This concept is
evident in cases like Perumal (1970) 2 MLJ 265 and Jamali Adnan (1985) 1 MLJ 305.
However, there is an exception to this doctrine; it becomes invalid if the law specifies that
written consent is required. In Goh Keat Peng (2001) 3 MLJ 172, it was clarified that, when
written consent is mandated, the mere presence of the DPP does not constitute consent.
In the current situation, section 129 of the CPC requires that a prior sanction be made
in writing before the court could take cognisance of an offence under section 193. This
actually draws a parallel to the case of Datuk Mahinder Singh v Public Prosecutor [1987] 2
CLJ 39, where the same offence and a lack of sanction, the Court affirmed that the sanction
need to be done in writing in accordance with the statute despite the DPP’s contention that his
presence should suffice for sanction. Thus, the doctrine of alter ego is not applicable. The
want of sanction is not curable under the doctrine of alter ego, yet may be cured under section
422 depending on the interpretation of the section the court takes.
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Meanwhile, Section 422 offers an alternative remedy for the absence of a sanction. It
specifies that a court's decision, sentence, or order can only be reversed due to a lack of
sanction if it results in a failure of justice. There are two contrasting interpretations of s. 422;
a strict and liberal interpretation. The strict interpretation, exemplified in Maimunah Samad
v PP [1997] 3 CLJ Supp 43, contends that even in the absence of a miscarriage of justice, the
lack of sanction under s. 193 renders proceedings null and void. Conversely, the liberal
interpretation, illustrated in PP v Ishak B Hj Shaari (2003) 4 MLJ 585, takes a more lenient
approach. It asserts that minor procedural errors and omissions will not invalidate the trial
unless there is a substantial non-compliance with legal forms, or the accused can demonstrate
significant prejudice.
The question of whether it is curable or not depends on the way the court interprets s.
422. Should the court take the liberal interpretation, the want of sanction is curable so long as
the law has been complied with substantially and the defendant is incapable of proving
prejudice similar to PP v Ishak B Hj Shaari. On the other hand, if the court were to take a
strict approach, the want of sanction is not curable, similar to Maimunah Samad v PP.
Applying to the current situation, the strict approach will render Joni’s trial null and void in
the absence of the written sanction. In the present matter, the suitable approach to be adopted
is the liberal approach, considering the absence of sanction as a minor procedural error in the
trial. This approach views the issue as non-serious since it does not result in a failure of
justice or invalidate the trial.
In conclusion, the contention by Joni is wrong as there is an irregularity due to my
failure as the DPP in providing the written sanction, however it can be cured under s. 422 of
the CPC.
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