CONFIDENTIAL

UNlVERSlTl TEKNOLOGI MARA

FINAL EXAMINATION

COURSE : ADVANCED CRIMINAL PROCEDURE I

COURSE CODE : LAW546
DATE : 20 MARCH 2005
TIME -
: 3 HOURS (9.00 AM. 12.00 P.M.)
SEMESTER : NOVEMBER 2004 -APRIL 2005

INSTRUCTIONS TO CANDIDATES

1. This paper contains of TWO (2) questions.

2. Answer both questions. Use a separate booklet for each question

3. Candidates are allowed to bring into the examination hall the following (without
annotations);
(i) Criminal Procedure Code
(ii) Penal Code
(iii) Minor Offences Act 1955

4. Do not bring any other material into the examination room unless permission is given by
the invigilator.

5. Please check to make sure that this examination pack consists of:
(i) the Question Paper
(ii) two Answer Booklets - provided by the Faculty

DO NOT TURN THIS PAGE UNTIL YOU ARE TOLD TO DO SO

This examination paper consists of 5 printed pages
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QUESTION 1

On 31 January 2004 at about 3.00 p.m. Stellar, who was from lpoh, was sight seeing at
Dataran Merdeka, Kuala Lumpur when her handbag was snatched by a passing motor-
cyclist. She proceeded to the Dang Wangi police station to lodge a police report. lnspector
Man was assigned to investigate the case as in the past one week four such thefts had
occurred in the area. lnspector Man and Stellar visited Dataran Merdeka but efforts to trace
the snatch thief were unsuccessful. Stellar was allowed to return to lpoh while lnspector
Man continued to conduct investigations in the area.

At about 5.00 p.m. lnspector Man saw Apel riding by on his motorcycle. He stopped Apel
and questioned him. When Apel denied that he had any knowledge of snatch thefts in the
area, lnspector Man informed Apel that he was arresting him to assist him in his enquiries.

Apel was taken to the Dang Wangi police station. On reaching the station at about 6.30 p.m.,
lnspector Man searched Apel. He found a one-caret diamond worth RM 10,000 hidden in a
fold of Apel's shirt. When questioned, Apel stated:

"I was meditating at Taman Relax, Kiang on 28 January 2004.

At about 2.00 p.m. this diamond dropped from the sky."

Based on this answer, lnspector Man lodged a further report against Apel for an offence
under section 29(1) of the Minor Offences Act 1955. He also interrogated Apel after
administering the prescribed caution under section 113(l)(a)(2) of the CPC. Apel then made
the following statement:

"It was my twin brother, Duku who committed the theft of

a handbag from a woman at Dataran Merdeka at about
3.00 p.m. today. He told me this."

Apel was subsequently charged for the offence under the Minor Offences Act 1955. Apel's
application for bail, pending his trial, was rejected by the court because of police objections
that Apel might abscond.

On 2 February 2004 at about 3.00 p.m. lnspector Man managed to arrest Duku. Duku, on his
arrest, denied that he was involved. As it was late in the evening, lnspector Man decided to
apply to Astro, a magistrate, to detain Duku under section 117 of the CPC for further
investigations. This application was granted. However, lnspector Man was unable to achieve
any progress in his investigations. Stellar was also unable to identify Apel as the snatch
thief. On 5 Febuary 2004, lnspector Man released Duku after slapping him once on the
cheek. lnspector Man is considering whether he could charge Duku for theft of Stellar's
handbag by using Apel's cautioned statement against Duku.

In the meantime, Duku had lodged a police report against lnspector Man for an offence
under section 352 of the Penal Code. On 6 Febuary 2004, Duku applied to Selcom, a
magistrate, to issue a warrant of arrest against lnspector Man. He enclosed with his
application: - his police report and an affidavit in which he stated he was slapped once on
the cheek by lnspector Man as well as a medical report confirming that he had sustained
bruises on his cheek.

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On 10 Febuary 2004, Selcom served due notice on the Public Prosecutor that he would hold
an examination of Duku on 15 Febuary 2004. On that day, Selcom dispensed with Duku's
attendance. Instead, he ordered a warrant to be issued for the arrest of lnspector Man after
studying all the documents attached to Duku's application.

a) Apel wishes to know if he can proceed against lnspector Man for unlawfully:

i) arresting and detaining him.

(20 marks)

ii) searching him.

( I 0 marks)

b) Assume that you are lnspector Man. In that capacity:

i) draft the charge against Apel for the offence under the Minor
Offences Act 1955.
(30 marks)

ii) draft the application to Astro to detain Duku under section 117 of the Criminal
Procedure Code.
(30 marks)

c) Advise lnspector Man whether the cautioned statement of Apel would be admissible
against Duku should Duku be charged for theft of Stellar's handbag?

(30 marks)

d) As Apel's counsel, advise him of the best available option to obtain bail following
rejection of his initial application and if successful, what the likely terms of bail would
be. Give reasons for your answer.
(40 marks)

e) Did Selcom act correctly in considering and in ordering the issue of a warrant for the
arrest of lnspector Man?
(40 marks)

QUESTION 2

On 13 January 2004 at about 10.00 a.m. Celeste was walking along Jalan Mewar, Shah
Alam. She was accosted by two persons. One of them held her neck from the rear while the
other person fondled her. Both of them fled when Celeste screamed for help. The incident
was witnessed by Jaba and Concita.

A police report was lodged by Celeste. The two witnesses were traced by lnspector Andre.
While Jaba gave a written statement to lnspector Andre, Concita refused to do so despite
the provisions of section 112 being explained to her. She said:

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"Iam afraid of reprisals from the assailants."

On 14 January 2004 at about 9.00 a.m. on receipt of an information, Inspector Andre was
able to arrest Expresso. An identification parade was held and Celeste successfully
identified Espresso as the person who had fondled her. Jaba also identified Expresso. Later
that same day, on the directions of DPP Gonzales, Espresso was charged before Hugo, a
Session Court judge, for an offence under section 354 of the Penal Code. Expresso pleaded
guilty and was sentenced to two months' imprisonment.

On 15 January 2004, Celeste was walking along Jalan Kaya, Klang when her handbag was
snatched. The thief was arrested by a passing policeman. On seeing the person arrested,
Celeste claimed that he was the person who had held her when Espresso fondled her. From
the documents that he was carrying, he was identified as Mocha.

That afternoon, Mocha was produced before Maxim of the Shah Alam magistrate's court and
charged with:

(i) abetting Espresso to outrage Celeste's modesty

(ii) theft of Celeste's handbag.

He pleaded guilty to the offence of theft and despite his plea in mitigation that he was a first
offender, Mocha was sentenced to eight years' imprisonment and one stroke of the whip.
He, however, claimed trial to the offence under section 354 of the Penal Code. Trial was
fixed for hearing on 17 April 2004.

On 17 April 2004, hearing commenced before Maxim. In the course of the trial, Jaba,
contrary to his police statement, gave evidence that he did not see the incident when
Celeste was molested. In view of the material inconsistency between the police statement
and the testimony in court, lnspector Abah, who conducted the prosecution, obtained leave
to impeach Jaba. This was successfully effected. The trial then proceeded. Celeste's police
report was not tendered as part of the prosecution case. Despite this, Mocha was called to
enter his defence. Mocha was eventually found guilty and convicted.

On 18 April 2004, Jaba was charged before Pancho, a magistrate, for an offence under
section 193 of the Penal Code. The prosecution was conducted by DPP Rembai. Although
Jaba contended that his trial was a nullity in the absence of a sanction, he was tried, found
guilty and fined RM 1,000.

a) Was Concita correct in refusing to assist the police by not giving a statement?

(20 marks)

b) Can Expresso apply for revision on the grounds that his case should have been tried
before a magistrate?
(20 marks)

c) Should the two charges against Mocha be heard at one trial? Discuss.
(30 marks)

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d) Are there grounds for Mocha to apply for revision against the sentence imposed by
Maxim for theft of Celeste's handbag?
(40 marks)

e) Discuss whether it was proper for Maxim to have called for Mocha's defence on the
charge under section 354 of the Penal Code when the prosecution failed to tender
Celeste's report as part of its case.
(30 marks)

f) Assume that you were Maxim hearing the case against Mocha for the offence under
section 354. What would be your decision if after the impeachment of Jaba's credit,
the DPP conducting the case were to inform you that he was withdrawing the charge
against Mocha?
(20 marks)

g) Would section 422 of the CPC cure any irregularities/illegalities in Jaba's conviction
under section 193 of the Penal Code?
(40 marks)

END OF QUESTIONS PAPER

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