DISCLOSURE OF CRIMINAL PROCEEDINGS

DISCLOSURE UNDER SECTION 51

 Section 51 of the CPC gives power to the court to issue a summons to a person
and to the police making a police investigation to issue a written order to the
same category of person requiring him to attend and produce the document or
property at the time and place stated in the summons or order if it or he
considers that the production of the property or document is necessary or
desirable for the purposes of any investigation, inquiry, trial or other proceeding.
 In PP v Teoh Choon Teck (1963) MLJ 34, the court can issue such summons if
it appears to be relevant and must have some connection to the investigation,
inquiry, trial or proceeding.
 In Abdul Ghani bin Ishak v pp (1980), in a situation where there is evidence
which may be relevant to one party which is in the possession of the other party,
the party who wishes it to be produced may then apply for summon from the
court under section 51 to compel the production of the evidence.
 However, the decision had been criticized by Seah J in Syed Abu Bakar bin
Ahmad v PP (1982) 2 MLJ 186 where he stated that this section need to be
construed strictly where it does not allow an accused to ask for discovery of
document or inspection of document seized by the police in the course of their
investigation or in their possession before the criminal trial.
 Such inconsistency has been resolved by Supreme Court in Raymond Chia Kim
Chwee & Anor (1985). Section 51 stated “necessary or desirable for the
purposes of any investigation, inquiry, trial or other proceeding”. Thus, it can be
either before the commencement of a trial or in the course of a trial. The court
needs to consider at what stage of the proceeding the application is made and to
ensure justice.
 If the stage is prior to the commencement of trial, regard must be had to the
requirements of ss 152, 153 and 154 CPC and the charge must contain sufficent
particular of offence.
 This entitlement of the accused to any document or other material in the
possession of prosecution is entirely at the discretion of the court having regard
to the necesitty, desirabiltiy, relevancy and justice.

SECTION 51A
 Section 51A states the prosecution has a mandatory obligation document stated
in the section 51A to the accused that would form part of the prosecution’s case
to the defence before commencement of trial. However, there is an exception
 where the prosecution may not supply the favourable facts to the accused on the
grounds of public interest.
 According to Hansard of Parliament, the reason of such insertion is to make it
mandatory to the prosecution to supply any document or report which will form
part of the prosecution’s case to the defence before the commencement of trial,
bring justice to all parties and save court time.
 In PP v Mohd Fazil Awaludin this 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.
 It is mandatory to prosecution to comply with section 51A. In PP v Mohd Fazil, it
is mandatory but non-compliance would not render the trial a nullity unless the
court satisfied that the accused has been prejudiced.
 In Lee Lu Chaung v PP, the Magistrate fix a trial date without compliant to
section 51A although insisted by the accused because section 51 is merely to
facilitate a trail and the provision can be complied during trial. The court held that
trial should not be commence until section 51A is complied with because it is
mandatory by PP to supply document.
 If the prosecution does not deliver documents to the accused of some reason,
the accused a file action to challenge the grounds of decision by the prosecution.

RELATIONSHIP BETWEEN SECTION 51 AND SECTION 51A

 In PP v Datuk Seri Anwar bin Ibrahim¸ the insertion of s. 51A CPC obviously
does not make s. 51 CPC irrelevant. The principle in s. 51 CPC is still applicable
and the accused is entitled to apply to the court any document or property (other
than what is provided in s. 51A CPC) subject to relevancy test and discretion by
the court. Section 51A CPC is simply a new provision or ‘a bonus to the defence’
on the right of discovery in criminal case.

DIFFERENCE BETWEEN SECTION 51 AND 51A

Factors 51 51A
Who can ask Accused, police, court Accused
What can ask Documents/ things Only 3 documents in
section 51(1)(a-c)
Court power Discretionary Mandatory

When can apply At any stage of proceeding Before trial.