TUTORIAL UUUK4033 CRIMINAL PROCEDURE

Chris Christian & Ors v Public Prosecutor [2019] MLJU 1916, High Court
Bryan Anil Mathew (A166837) Firm 16 (S.112 CPC)

Facts of case
All three applicants/accused were charged on 30.6.2017 for drug trafficking, an offence
punishable under Section 39B (1) (a) of the DDA 1952. The case for the prosecution had been
concluded. On 27.9.2019, I found that the prosecution has made out a prima facie case against
the accused and called upon all the accused to enter their defence.
On the same day, the defence counsel for the 2nd accused wrote to the prosecution requesting
for a copy of statement under section 112 of the CPC by those witnesses who were offered to
the defence to be furnished to the defence counsel.
The relevant excerpt is as follows:
“2. Tujuan kami menulis surat ini kepada Tuan adalah untuk memohon supaya sesalinan
kenyataan saksi-saksi yang direkodkan di bawah Seksyen 112 Kanun Tatacara Jenayah bagi
saksi-saksi yang ditawarkan kepada pembelaan dapat dibekalkan kepada pihak kami dengan
kadar segera.”
On 9.10.2019, the prosecution replied the letter and rejected the defence counsel’s request. On
16.10.2019, the defence counsel wrote to the Court and requested for a hearing date for the
parties to submit before the Court on the issue of release of Section 112 statement.
Issues that arose
a. Whether prosecution can release a copy of the statement of witnesses recorded under Section
112 CPC for witnesses offered to the defence?
b. Whether the findings under “Siti Aisyah” makes it mandatory for the statement under 112
CPC to be released to the defence counsel?
Applicant’s Argument
The applicants urge and argued that they have a right to get hold of the copy of the statement
from the prosecution. In the case of Siti Aisyah v PP, Harmindar Singh JCA in paragraph 81
stated that “In answer to the question that was posed at the outset, we agreed with the appellant
that there was a duty on the prosecution to disclose to the defence the police statements of the
witnesses offered to the defence which were necessary and desirable to their case.

Judgement
In answering the first question as to whether prosecution can release a copy of the statement of
witnesses recorded under Section 112 of CPC for witnesses offered to the defence, it is my
view that the prosecution has a duty to disclose to the defence the Section 112 of CPC
statements of the witnesses offered to the defence which were necessary and desirable to their
case. Although there was no statutory obligation to do so, there was indeed such as duty at
English common law as seen in R v Lawson [1990] 90 Cr App R 107, R v Ward [1993] 2 All
ER 577 and R v Brown (Winston) [1998] AC 367.

The second question is whether the findings under Siti Aisyah makes it mandatory for the
statement under 112 to be released to the defence counsel. It must be noted that the question
posed to the Court of Appeal in Siti Aisyah was “whether the prosecution can be ordered, at
the end of the case for the prosecution, and where defence has been called, to furnish to the
accused a copy of witness statements recorded under Section 112 CPC of witnesses offered to
the defence which are material and which may assist the defence case.”. It is my view that the
release of 112 statement must be exercised with caution and it much depends on at what stage
the defence is seeking for its release. If it is before the end of the case for the prosecution, the
Court shall not order release for “if the prosecution is obliged to supply copies of police
statements to the defence without the intervention of the court, the defence may be tempted to
ask for, and the prosecution will be obliged to supply, copies of every statement in the police
investigation file, and Malaysians will be more reluctant to come forward with evidence to
incriminate their fellows” as cautioned by Suffian LP in Husdi v Public Prosecutor

If the prosecution has closed its case and the witnesses of whom the statements were sought
were offered to the defence, by virtue of the English common law and Siti Aisyah case, the
Prosecution has a duty at common law not statutory obligation, to provide the 112 statement
to the defence where the Court thinks it expedient in the interest of justice, necessary and
desirable for the defence to defend the case.

Therefore the application by the Applicants is allowed.