3.

0 FRIST GROUND OF SUBMISSION

The Police Officers have the power to search and arrest without warrant it is
lawful to search and arrest warrant without warrant.

3.1 SUBMISSION ONE

Your Honour,

3.1.1 The submission is that the search done by Sergeant Abu and Inspector
Tan is lawful because the Police Officers, especially Sergeant Abu and
Inspector Tan in this case has the right to enter into James house and
search for James without warrant.

3.1.2 It should be noted that Section 16 of Criminal Procedure Act provides

the police officer for the right to search of place entered by person sought to
be arrested. It stated:

(1) If any person under a warrant of arrest or any police officer or

penghulu having authority to arrest has reason to believe that any
person to be arrested has entered into or is within any place the person
residing in or in charge of the place shall, on demand of the person so
acting or the police officer or penghulu, allow him free ingress to the
place and afford all reasonable facilities for a search in it.

(2) If ingress to that place cannot be obtained under subsection (1) it

shall be lawful in any case for a person acting under a warrant and in
any case in which a warrant may issue but cannot be obtained without
affording the person to be arrested an opportunity to escape for a
police officer or penghulu to enter the place and search in it, and in
order to effect an entrance into the place to break open any outer or
inner door or window of any place whether that of the person to be
arrested or of any other person if, after notification of his authority and
 purpose and demand of admittance duly made, he cannot otherwise
obtain admittance.

3.1.3 Its very clear section 16(1) of Criminal Procedure Act provides the
power for Sergeant Abu and Inspector Tan who are the police officers to enter
into James house and search for James without warrant. It should be noted
that James slammed the door when they invited him to follow them to the
station. This conduct indicates that James denied the entry. Pursuant to
section 16(2), Sergeant Abu and Inspector Tan are allowed to use
reasonable force to break into his house to prevent him from escaping if the
entry has been denied.

3.1.3 Furthermore, where there is no search warrant, the officer may be

justified to use force to gain ingress to the closed places under section 40 of
the Interpretation Acts 1948 and 1967 for search which provides for the
implied power to do so, where it reads:

(1) Where a written law confers a power on any person to do or

enforce the doing of any act or thing, all such powers shall be
understood to be also given as are reasonably necessary to enable the
person to do or enforce the doing of the act or thing...

(2) (c) where a power is conferred on any person to direct, order or

require any act or thing to be done, there shall be deemed to be
imposed on any person to whom a direction, order or requisition is
given in pursuance of the power a duty to comply therewith.

3.1.5 Therefore, according to section 40 of the Interpretation Act 1948 and

1967, the police officer, who has been conferred the power to search, shall
be understood to be given also as are reasonable necessary to enable to
enforce such power, for instance, use force to gain ingress to the closed
places when its reasonably necessary. In other words, Sergeant Abu and
Inspector Tan have the implied power to enter into James house even there
is no warrant when its reasonably necessary. The search is therefore lawful.
3.1.6 The Court of Appeal case of Menteri Dalam Negeri &Ors v. Titular
Roman Catholic Archbishop of Kuala Lumpur [2013] 8 CLJ 890 stated
that the power conferred under section 40 must be reasonable, which
depends on the facts and circumstances of each case. Mohamed Apandi Ali
JCA stated as follow:

The law gave him such power and even if it is not so provided, the law
gave him such implied powers. This is as provided for under s. 40 of
the Interpretation Acts 1948 and 1967 Such discretion must not be
unfettered or arbitrary. Such exercise of discretion must be reasonable.
What is reasonable depends on the facts and circumstances of the
case. What is a justifiable circumstances depends on the necessity of
the occasion.

3.1.7 In R v. MacDonald [2014] 1 SCR 37, the Supreme Court discussed

about the factors that must be weight in order to determine whether a search
is reasonably necessary. According to McLachlin CJ, the police duty and the
liberty interest in question must be balanced:

To determine whether a safety search is reasonably necessary, and

therefore justifiable, a number of factors must be weighed to balance
the police duty against the liberty interest in question. These factors
include: the importance of the duty to the public good; the necessity of
the infringement for the performance of the duty; and the extent of the
infringement. The duty to protect life and safety is of the utmost
importance to the public good, but an infringement on individual liberty
may be necessary when, for example, the officer has reasonable
grounds to believe that the individual is armed and dangerous.

3.1.8 Therefore, Sergeant Abu and Inspector Tan can only exercise the
implied power under section 40 when its reasonably necessary and what is
reasonable is determined by the facts and circumstances, according to the
principle in case of Menteri Dalam Negeri &Ors v. Titular Roman Catholic
Archbishop of Kuala Lumpur. In this situation, the policeman invited James
to follow them to the station. The invitation is conducted in a civil manner but
James subsequently reacted unreasonably. He lost his control and slammed
the door immediately as well as shouted loudly. Due to this unusual reaction,
Sergeant Abu and Inspector Tan had a reasonable ground to suspect that
James was dangerous. It has been proved at the moment they found James
in his storeroom, he was armed with a crow-bar and hammer. Hence,
Sergeant Abu and Inspector Tan have exercised their implied power correctly
to enter James house and search for him as they have reasonable ground to
believe he is dangerous, according to principle in R v. MacDonald.

3.1.9 In conclusion, section 16 of Criminal Procedure Act confers power on

Sergeant Abu and Inspector Tan to enter into Jamess house and search for
him. Section 40 of Limitation Act 1948 and 1967 further provides that they
have implied power to use force to use force to gain ingress to the James
house because its reasonably necessary for them to do that. Therefore, the
search of James house without warrant is lawful.

SUBMISSION TWO

Your Honour,

3.2.1 We further submit that the arrest done by Sergeant Abu and Inspector
Tan is lawful as the police officer has the power to arrest the accused without
warrant.

3.2.2 Arrest was defined in the case of Christie & Anor v Lenchinsky [1947]
1 All ER 567, Scott LJ pointed out,

"Arrest was the first step in a criminal proceeding against a suspected

person on a charge which was intended to be judicially investigated.
whereby an arrest is the first step in criminal proceedings against a
suspected person."

3.2.3 An arrest therefore means the first step in criminal proceeding against a
suspected person. It deprives a person's liberty by a legal authority. This
simply would mean that if a suspected person is restricted and deprived of his
liberty by a legal authority, he is said to be arrested.

3.2.4 There are 3 modes of arrest according to Section 15 (1) of the Criminal
Procedure Code. The three modes are by actually touching the body of the
person to be arrested, by actually confining the body of the person to be
arrested and there is submission to custody by word or action. This three
modes would constitute an arrest if performed against a suspected person.

3.2.5 In Section 15 (2) of the CPC, it further stipulates that the police or other
person making the arrest may use all means necessary to effect an arrest.
However, in Section 15 (3), it states that the police or other person does not
have a right to cause the death of a person who is not the accused of an
offence punishable with death or life imprisonment. This means that
necessary means may be used in arresting a person but it should not be
excessive to the point it causes death.

3.2.6 Furthermore, in the case of Alderson v Booth [1969] 2 All ER 271, the
Court had to decide whether asking the suspected person to come to the
police station for further tests constitutes an arrest. Lord Parker CJ mentioned
in his judgment,

"There may be an arrest by mere words, by saying I arrest you

without any touching, provided of course that the accused submits and
goes with the police officer. Equally it is clear, as it seems to me, that
an arrest is constituted when any form of words is used which, in the
circumstances of the case, were calculated to bring to the accused's
notice, and did bring to the accused's notice, that he was under
compulsion and thereafter he submitted to that compulsion."

3.2.7 Moving on, a person who may arrest a suspected person is a police
officer. A police officer is defined under Section 2 of the Police Act. It states,

police officer means any member of the Royal Malaysia Police;

3.2.8 This would mean that any member of the Royal Malaysia Police from
the rank of police up to Inspector General of Police may conduct an arrest.
They may do so in virtue of Section 23 of the Criminal Procedure Code.
Section 23(1)(a) states,

23. (1) Any police officer or penghulu may without an order from a
Magistrate and without a warrant arrest (a) any person who has been
concerned in any offence committed anywhere in Malaysia which is a
seizable offence under any law in force in that part of Malaysia in which
it was committed or against whom a reasonable complaint has been
made or credible information has been received or a reasonable
suspicion exists of his having been so concerned;

3.2.9 Seizable offence is interpreted in Section 2 (1) of the CPC, it states,

seizable offence means an offence for which and seizable case

means a case in which a police officer may ordinarily arrest without
warrant according to the third column of the First Schedule;

3.2.10 Also, seizable offence can be determined in the Penal Code. The third
column of First Schedule shows the offences which are punishable with
imprisonment of three years and above, and these would be the seizable
offence.

3.2.11 The police officer may arrest a person if he were to have a reasonable
suspicion about that person in accordance to Section 23(1)(a). In Shaaban v
Chong Fook Kam [1969] 1 LNS 170, Lord Devlin distinguished suspicion
from prima facie, he stated,

"Suspicion in its ordinary meaning is a state of conjecture or surmise

where proof is lacking: "I suspect but I cannot prove". Suspicion arises
at or near the starting-point of investigation of which the obtaining of
prima facie proof is the end. When such proof has been obtained, the
police case is complete; it is ready for trial and passes on to its next
stage. It is indeed desirable as a general rule that an arrest should not
be made until the case is complete. But if arrest before that were
forbidden, it could seriously hamper the police. To give power to arrest
on reasonable suspicion does not mean that it is always or even
 ordinarily to be exercised. It means that there is an executive
discretion"

3.2.12 According to the case of Lee Cher Joo & Anor v Mohd Sharifi
Othman & Ors [2009] 6 CLJ 165, the Court had followed the proposition in
Shaaban where a reasonable suspicion that one has committed and offence
is enough to effect an arrest. Ahmadi Asnawi JC stated,

"A reasonable suspicion that one has committed an offence is enough

to trigger the arrest mechanism. The test to be applied at this stage is
merely the existence of a reasonable suspicion to believe that the
person has committed an offence. The standard is lower than that
required to show the existence of a prima facie case."

3.2.13 In application to the current case, we submit that Sergeant Abu and
Inspector Tan had waited outside of James' house knocked on his front
door after an hour. They had requested James to follow them back to the
police station but James slammed the door in their faces and shouted "She
asked for it! She asked for it!". Sergeant Abu and Inspector Tan then broke
down the door and after a brief struggle, they arrested James by
handcuffing him.

3.2.14 It can be said that the arrest is lawful. This is because in reference to
Section 15 (1) of the CPC, there was touching of the body of the person to be
arrested, confining the body of the person to be arrested and there was
submission to custody by action. According to the facts, James was
handcuffed and brought to the police station in Bangi. It is clear that Sergeant
Abu and Inspector Tan touched and confined James by handcuffing him to
achieve his submission to be taken to the police station.

3.2.15 It's important to note that the arrest only took place when James was
handcuffed. Even though, an arrest can be by words without touching as seen
in the case of Alderson v Booth [1969] 2 All ER 271, it is only an arrest if
there is submission on the part of the person who is under the compulsion to
submit. When Sergeant Abu and Inspector Tan had asked for James to follow
them to the station, James did not submit but slammed the door at them.
Therefore, there was no arrest when the police officers asked James to follow
them to the police station because there was no submission.

3.2.16 Furthermore, we also submit that Sergeant Abu and Inspector Tan are
qualified to effect the arrest as they are police officers defined under Section
2 of the Police Act. They have the authority to arrest a suspected person by
virtue of Section 23(1)(a) of the CPC. They are allowed to arrest a person
without a warrant of arrest or order from Magistrate Court if they have a
reasonable suspicion that the person had committed a seizable offence.

3.2.17 In reference to Shaaban v Chong Fook Kam [1969] 1 LNS 170, a

police officer is given the power to arrest on suspicion because there is an
executive discretion. The fact that Sergeant Abu and Inspector Tan's invitation
to the police station was rejected by James slamming the door and shouting
"She asked for it! She asked for it!" is a prominent factor to why they would
have a reasonable suspicion towards James. A person who is not guilty, will
not behave in this manner.

3.2.18 Applying the case of Lee Cher Joo & Anor v Mohd Sharifi Othman &
Ors [2009] 6 CLJ 165, we submit that when the police officers have a
reasonable suspicion that the person had committed the crime, it is deemed
to be enough to effect an arrest. Hence, because of the reasonable suspicion
Sergeant Abu and Inspector Tan had, it is considered enough to effect an
arrest against James.

3.2.19 In conclusion, we submit that the arrest conducted by Sergeant Abu

and Inspector Tan is lawful by virtue of Section 23(1) (a) and Section 15(1).
Reasonable suspicion is fulfilled and sufficient to effect an arrest against
James in accordance to the principles of Shaaban v Chong Fook Kam and
Lee Cher Joo & Anor v Mohd Sharifi Othman & Ors.
4.0 SECOND GROUND OF SUBISSION

The statements made by James are admissible in court.

4.1 SUBMISSION ONE

Your Honour,

4.1.1 We submit that the statements made before arrest is admissible as the
police investigation starts after arrest if there is no first information report (FIR).

4.1.2 In order for a police officer to start an investigation, he would first need
the first information report (FIR). This refers to the initial information relating to
the commission of an offence given to the police officer under Section 107 of
the CPC which states,

"107. (1) Every information relating to the commission of an offence, if

given orally to an officer in charge of a police station, shall be reduced
to writing by him or under his direction and be read over to the
informant."

4.1.3 It is also known as a police report or complaint to the police. A police

investigation usually starts with the FIR.

4.1.4 However, an investigation against a suspected person begins only when

the person is arrested. Therefore, before the suspected person is arrested,
there can be no investigation against him. Hence, whatever statements made
before the arrest is admissible. This could be seen in the case of Public
Prosecutor v Tan Chye Joo & Anor [1989] 2 MLJ 253, Wan Adnan J stated,

"... He said 'ubat cina' before the discovery of the drugs, that is, before
PW4 opened the tin. I held that the first accused was arrested only
after the discovery of the drugs in the biscuit tin. His statement to PW4
was therefore admissible."

4.1.5 Referring back to the current case, James had made two statements.
The first statement is when he slammed the door and shouted, "She asked for
it! She asked for it! The second statement is when he was in the police
station, when he was being questioned by ASP Bada.

4.1.6 For the first statement, it is admissible because the statement was made
before he was arrested. James was only arrested after he was handcuffed by
Sergeant Abu and Inspector Tan. Therefore, an investigation against him had
not started until he was handcuffed. A statement made before being arrested
is admissible as seen in the case of Public Prosecutor v Tan Chye Joo &
Anor [1989] 2 MLJ 253.

4.2 SUBMISSION TWO

Your Honour,

4.2.1 We further submit that statements made by the accused are admissible
in court to impeach the credit of witness pursuant to section 113(2) of Criminal
Procedure Code.

4.2.2 According to Section 112 (1) of the CPC, it stipulated that any police
officer may examine orally any person acquainted with the facts and
circumstances of the case and shall be reduced into writing any statement
made by the person examined. The person answering is bound to answer all
questions relating to the case as seen in Section 112(2). Such person ought
to be truthful as well by stating the truth in accordance to Section 112(3).

4.2.3 It is also important to note Section 114 which is ought to be read

together with Section 112. It states,

"114. No police officer or other person shall prevent or discourage any

person from making in the course of a police investigation under this
Chapter any statement which he may be disposed to make of his own
free will."

4.2.4 This means that a Section 112 statements has to be made voluntarily
and on the examined person's free will in order for it to be evidence.

4.2.5 In the case of Noliana Sulaiman v Public Prosecutor [2001] 1 CLJ 36,
it was held that a police statement is ought to be presumed to have complied
with Section 112 and Section 114. Therefore, the burden of proof lies on the
accused to proof involuntariness. Augustine Paul J wrote in his judgment,

"Since P4 was a police statement, it must be presumed to have been

duly made pursuant to s. 80 of the Evidence Act 1950- which meant
that the provisions of s. 112 of the Criminal Procedure Codehad been
complied with. Since it is a requirement of s. 112 read with s. 114 of the
Criminal Procedure Codet hat a statement made under it is one that is
made on the free will of the person making it, it follows therefore that it
must be presumed under s. 80 of the Evidence Act 1950 that P4 was
so made. The burden therefore was on the accused to show that she
did not make P4 voluntarily."

4.2.6 According to Section 113 of the CPC, it stipulates that statements made
to a police officer during police investigation shall not be used in evidence. It
reads,

"113. (1) Except as provided in this section, no statement made by any

person to a police officer in the course of a police investigation made
under this Chapter shall be used in evidence."

4.2.7 However, there is an exception under Section 113 (2) of the CPC, it
states,

"113. (2) When any witness is called for the prosecution or for the
defence, other than the accused, the court shall, on the request of the
accused or the prosecutor, refer to any statement made by that witness
to a police officer in the course of a police investigation under this
Chapter and may then, if the court thinks fit in the interest of justice,
direct the accused to be furnished with a copy of it and the statement
may be used to impeach the credit of the witness in the manner
provided by the Evidence Act 1950 [Act 56]."
4.2.8 This means that the statements made to a police officer in the course of
investigation is admissible to impeach the credit of witnesses. Therefore, it's
not entirely inadmissible.

4.2.9 The second statement is also admissible because a police statement is

ought to be deemed in compliance of Section 112 and Section 114.
Therefore, there is the presumption that the statements made by James in the
police station were out of free will and the burden of proof lies on James to
proof the statement was done involuntarily. This principle is in accordance to
Noliana Sulaiman v Public Prosecutor [2001] 1 CLJ 36.

4.2.10 The statements are generally prohibited from being used as evidence
by virtue of Section 113. However, there is an exception in Section 113(2) as
it may be to impeach the credit of witnesses. Therefore, the statements made
by James may be used as evidence in the cross-examinations of witnesses.

4.2.11 In conclusion, we submit that both statements made by James are

admissible in accordance to the principles of the case of Public Prosecutor v
Tan Chye Joo & Anor and Noliana Sulaiman v Public Prosecutor. Not
forgetting, the statement made in the police station is admissible because
there is a presumption that a police statement has complied with Section 112
and Section 114. The accused would have the burden to proof otherwise.
Lastly, the statement made may be brought as evidence under Section
113(2).
CLOSING SUBMISSION

Your Honour,

We submit that the search and arrest done by Sergeant Abu and Inspector
Tan are lawful and both statements made by accused are admissible in the
court.

As such, we, the prosecution humbly pray that the preliminary issue raised by
the defence counsel can be dismissed.

Date this 10th August 2017.