The Powers of the Public Prosecutor (PP)
The prosecutorial power of the Public Prosecutor in Malaysia originates from the Federal Constitution. Article 145(3) of the Federal Constitution states that the Attorney General (AG) shall have power, exercisable at his discretion to institute, conduct or discontinue any proceedings for an offence. Section 376(1) of the Criminal Procedure Code (CPC) states that the AG shall be the PP and shall have control and direction of all criminal prosecutions and proceeding under the CPC. Thus, the AG can decide whether to charge a person or not. This shows that the AG is one of the most powerful position in Malaysia.
You may wonder how the AG alone conducts criminal prosecutions and proceedings around the country right? Section 367 CPC gives the PP the power to appoint Deputy Public Prosecutor (DPP) and Assistant Public Prosecutor (APP) who shall be under the general control and direction of the PP and may exercise all or any rights and power of the PP. Usually, the DPP will be the person who conducts the criminal prosecutions at the criminal court.
Under section 254 CPC, the PP can at any stage of the prosecution before the Court delivers its judgment, inform the Court that he does not want to further prosecute the Accused. The Court will then stay the charge against the Accused by ordering a discharge not amounting to an acquittal (DNAA). If the PP decides to not further prosecute the Accused completely in the future, then the Court will order a discharge amounting to an acquittal (DAA). Section 254A CPC allows the PP to continue with the prosecution with the same offence against the Accused that was discharge not amounting to an acquittal.
How Criminal Investigation Starts?
Usually, a criminal investigation starts when someone makes a police report at the police station. This report is called a first information report (FIR). Under section 107 CPC, FIR can be lodged by any person who has information about a crime. It was elaborated in the case of Herchun Singh & Ors v PP [1969] 2 MLJ 209 that a FIR need not contain the complete information of the commission of the offence but there should be clear, definite information about the commission of a offence which can be clearly identified to set the investigation machinery in motion.
It should be noted that police officer can start their investigation without anyone making a FIR. Investigations may come from many sources. For example, the police officer may obtain some information from police informant, from suspicious activities or evidences gathered from witnesses, documents, CCTV recordings or Electronic money trails which triggers them to investigate further into a matter. In Tan Cheng Kooi & Anor v PP [1972] 2 MLJ 115, it was held that FIR is not a substantive evidence and it is inadmissible for the purpose of proving the facts of the case but it can be used by way of corroboration or to show contradiction. Thus, If the FIR lacks certain facts, it does not affect the Prosecutor’s case.
Once the police officers completed their investigations which includes gathering all the material evidences, arrest and remand of the accused person, the investigation papers (IP) are sent to the office of the director of state prosecutions or the prosecution division of the Attorney General Chambers (AGC) for an approval of whether to charge the accused person in court.
Is there any Repercussions if Someone Lodged a False Police Report?
If a Complainant is found to be giving false information in his Police Report, the Complainant may be charged under section 182 and/or section 203 of the Penal Code.
Under section 182 of the Penal Code, it is an offence to gives to any public servant, in this case the Police any information which he know or believes to be false and knowing it to cause the public servant to use his lawful power to the injury or annoyance of any person. Anyone committed this offence shall be punished with imprisonment for a maximum of 6 months or with fine of a maximum of RM2,000.00 or with both. For a better understanding, you can refer to the illustrations under section 182 as follows:
“(a) A informs the Inspector General of Police that Z, a police officer subordinate to the Inspector general, has been guilty of neglect of duty or misconduct, knowing such information to be false, and knowing it to be likely that the information will cause the Inspector General to commence disciplinary proceedings against Z. A has committed the offence defined in this section.
(b) A falsely informs a public servant that Z has contraband opium in a secret place, knowing such information to be false, and knowing that it is likely that the consequence of the information will be a search of Z’s premises, attended with annoyance to Z. A has committed the offence defined in this section.
(c) A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a particular village. He does not mention the name of any person as one of his assailants but knows it to be likely that in consequence of this information the police will make inquiries and institute searches in the village to the annoyance of the villagers or some of them. A has committed an offence under this section. “
Under section 203 of the Penal Code, if you know or having reason to believe that an offence has been committed, give any information respecting the offence which you know or believes to be false, you could be punished with imprisonment a maximum of 2 years or with fine or with both.
Hence, you need to be truthful when lodging a police report. You may end up in the prison if you simply lodge a police report.
Can You Withdraw Your Police Report?
The short answer is No. This is stated clearly in the Official Portal of the AGC here. The Complainant cannot withdraw his FIR per se, but he can make a written application to the AGC so that no action is taken against the report lodged by him but the PP will still have the power to accept or reject his application.
Does it mean that the Accused Person is Acquitted When the Complainant Withdraw His Police Report?
As mentioned before, the PP have the discretion to initiate or to discontinue a criminal prosecution. In Izmeer Aizat bin Idrusam v Public Prosecutor [2019] 8 MLJ 289, the Court held that the Court had no right to interfere with the prosecutorial discretion granted to the PP by the Federal Constitution. Under s 254 of the CPC, there is an affirmative action required from the PP or DPP. It mandates the PP or DPP to notify and inform the court of the stand it was taking. The Court in this case was unable to find any affirmative submission by the DPP that he does not wish to proceed with the matter. Therefore, the Court interpret that the DPP was merely leaving the decision to the court as to the appropriate order to be made in light of the circumstances of the case. It was also held that the withdrawal of a FIR does not allow the Court to automatically acquit and discharge an accused person. What was decided by the case above is that judges can only order a DNAA unless the PP inform the Court that he does not intend to proceed with the matter.
As discussed above, a FIR is not the substantive evidence of the prosecution and the PP has the sole discretion to prosecute. Thus, the PP can still proceed with the prosecution in the interest of the public.
Can the Accused Appeal for an Order of Discharged Amounting to an Acquittal (DAA)?
In Tan Chow Cheang v Public Prosecutor [2018] 5 MLJ 411, the Court held that the order of DNAA is not appealable because it is not a final order of the court. The Appeal will be deemed premature as the DNAA order acted as a stay of proceeding.
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