280 Malayan Law Journal [2001] 4 MLJ

Chiew Poh Kiong v Public Prosecutor A

HIGH COURT (KUCHING) — CRIMINAL APPEAL NO 41–03 OF 2001–

III(I)
IAN CHIN J
27 AUGUST 2001
B
Criminal Procedure — Appeal — Conviction and sentence, against — Court re-
amended charge before judgment was pronounced — Convicting accused on re-amended
charge — Accused pleaded not guilty to re-amended charge — Convicting accused without
calling for him to enter upon his defence on re-amended charge, whether conviction valid
C
Criminal Procedure — Charge — Alteration or amendment of — Court re-amended
charge before judgment was pronounced — Whether consent of Public Prosecutor necessary
for re-amended charge — Whether charge could be amended in the course of reading
judgment — Convicting accused without calling for him to enter upon his defence on re-
amended charge — , whether conviction valid
D
Following the quashing of the conviction and sentence of the accused
and following an order for his retrial, the sanction of the Public
Prosecutor was given to prosecute the accused for an offence of giving
false information under s 182 of the Penal Code. The prosecution
concluded its case after calling five witnesses and the court ruled that
the accused had a case to answer. Learned counsel for the accused E
told the court that the accused wished to remain silent. Thereafter, the
court proceeded to read the judgment and stated that the amended
charge in this case ought to be re-amended as the evidence adduced
by the prosecution as a whole tended to support beyond reasonable
doubt, a charge under s 177 of the Penal Code. The charge was F
accordingly re-amended at that stage to one under s 177 of the Penal
Code. The further sanction of the Public Prosecutor was not obtained
in respect of the re-amended charge. The re-amended charge was read
and explained to the accused. The accused understood the re-
amended charge and pleaded not guilty. The court held that in view
of the overwhelming evidence against the accused on the re-amended G
charge and as the offence had been proved beyond reasonable doubt,
the accused was accordingly found guilty as charged on the re-
amended charge. The accused appealed.

Held, setting aside the conviction and sentence and calling the H
accused to enter upon his defence to the re-amended charge:
(1) Sanction was obtained for a charge under s 182 of the Penal Code
and although the charge was re-amended to one under s 177, both
the charges related to the same facts surrounding the furnishing of
false information. Therefore, as provided under s 161 of the I
Criminal Procedure Code (‘CPC’), no further sanction was
required (see p 286B–C).
 Chiew Poh Kiong v Public Prosecutor
[2001] 4 MLJ (Ian Chin J) 281

A (2) Based on s 158 of the CPC, the court could amend the charge at
any time before the judgment was pronounced. The
pronouncement of a judgment meant the reading in open court of
a finding of guilt by the court. In the instant case, since the charge
was re-amended before the conviction was pronounced, the re-
amendment was in order (see p 287E–F).
B
(3) After the charge was re-amended, the re-amended charge had to
be read and explained to the accused and in the case where the
accused had pleaded not guilty, there should be a trial. As such,
in the instant case, the lower court should have asked both the
prosecution and the defence as to whether there was need to
C examine the witnesses and then call for the defence. Instead, the
accused was immediately convicted without calling for him to
enter upon his defence on the re-amended charge despite his plea
of not guilty. This was clearly not in accordance with the CPC and
was therefore illegal. The conviction and sentence could not stand
and accordingly had to be set aside (see pp 288A–D).
D
(4) The accused was bound under s 112(2) of the CPC to answer all
questions put to him that is, he was prohibited by law from
refusing to answer truthfully. Therefore, the accused was ‘legally
bound to furnish information’ within the meaning of s 177 when
he was questioned by the police under s 112 of the CPC.
E Accordingly, the accused was called upon to enter upon his
defence to the re-amended charge (see pp 291C, F).

[Bahasa Malaysia summary

Berikutan pembatalan sabitan dan hukuman tertuduh dan susulan
F daripada perintah untuk perbicaraan semula beliau, sanksi Pendakwa
Raya telah diberikan untuk mendakwa tertuduh untuk satu kesalahan
memberi maklumat palsu di bawah s 182 Kanun Keseksaan. Pihak
pendakwa menutup kesnya selepas memanggil lima orang saksi
dan mahkamah memutuskan bahawa tertuduh mempunyai kes
G untuk dijawab. Peguam tertuduh yang arif memaklumkan kepada
mahkamah bahawa tertuduh ingin berdiam diri. Selepas itu,
mahkamah terus membaca penghakiman dan menyatakan bahawa
tuduhan terpinda dalam kes ini seharusnya dipinda semula kerana
keterangan yang dikemukakan oleh pihak pendakwa pada
keseluruhannya cenderung menyokong melampaui keraguan
H munasabah, satu tuduhan di bawah s 177 Kanun Keseksaan.
Tuduhan tersebut dengan sepatutnya dipinda semula di peringkat
tersebut kepada satu di bawah s 177 Kanun Keseksaan. Sanksi lanjut
Pendakwa Raya tidak diperolehi berhubung dengan tuduhan terpinda
semula. Tuduhan terpinda semula dibaca dan dijelaskan kepada
tertuduh. Tertuduh memahami tuduhan terpinda semula dan
I mengaku tidak salah. Mahkamah memutuskan bahawa
memandangkan keterangan yang begitu ketara terhadap tertuduh
pada tuduhan terpinda semula dan oleh kerana kesalahan tersebut
282 Malayan Law Journal [2001] 4 MLJ

telah dibuktikan melampaui keraguan munasabah, tertuduh A

sewajarnya telah didapati bersalah seperti yang dipertuduhkan dalam
tuduhan terpinda semula. Tertuduh membuat rayuan.

Diputuskan, mengetepikan sabitan dan hukuman dan memanggil

tertuduh supaya memasukkan pembelaannya kepada tuduhan
terpinda: B

(1) Sanksi telah diperolehi untuk satu tuduhan di bawah s 182 Kanun
Keseksaan dan walaupun tuduhan telah dipinda semula kepada
satu di bawah s 177, kedua-dua tuduhan berkaitan dengan fakta
sama yang menyelubungi pemberian maklumat palsu. Oleh yang
demikian, seperti yang diperuntukkan di bawah s 161 Kanun C
Acara Jenayah (‘KAJ’), sanksi lanjut tidak diperlukan (lihat ms
286B–C).
(2) Berdasarkan s 158 KAJ, mahkamah boleh meminda tuduhan
pada bila-bila masa sebelum penghakiman diumumkan.
Pengumuman penghakiman bermakna bacaan satu keputusan D
bersalah oleh mahkamah di mahkamah terbuka. Dalam kes ini,
oleh kerana tuduhan telah dipinda semula sebelum sabitan
diluluskan, pindaan semula adalah mengikut aturan (lihat ms
287E–F).
(3) Selepas tuduhan dipinda semula, tuduhan terpinda semula
hendaklah dibaca dan dijelaskan kepada tertuduh dan dalam kes E
di mana tertuduh telah mengaku tidak bersalah, perbicaraan
harus diadakan. Oleh yang demikian, dalam kes ini, mahkamah
bawah seharusnya telah bertanya kedua-dua pihak pendakwa dan
pembelaan tentang sama ada ada keperluan untuk memeriksa
saksi-saksi dan kemudian memanggil untuk pembelaan. F
Sebaliknya, tertuduh telah disabit serta-merta tanpa memanggil
beliau supaya memasukkan pembelaannya atas tuduhan terpinda
semula walaupun akuan tidak salah yang dibuatnya. Ini jelas tidak
menurut KAJ dan dengan itu menyalahi undang-undang. Sabitan
dan hukuman tersebut tidak boleh dikekalkan dan lantaran itu ia
hendaklah diketepikan (lihat ms 288A–D). G
(4) Tertuduh wajib di bawah s 112(2) KAJ menjawab segala soalan
yang dikemukakan kepadanya, iaitu beliau dilarang enggan
menjawab benar di sisi undang-undang. Oleh itu, tertuduh adalah
‘legally bound to furnish information’ dalam lingkungan maksud
s 177 apabila ia disoal oleh polis di bawah s 112 KAJ. Dengan itu,
tertuduh dipanggil memasukkan pembelaan kepada tuduhan H
terpinda semula (lihat ms 291C, F).]

Notes
For cases on appeal against conviction and sentence, see 5 Mallal’s
Digest (4th Ed, 1997 Reissue) paras 191–196. I
For cases on alteration or amendment of charge, see 5 Mallal’s Digest
(4th Ed, 1997 Reissue) paras 680–736.
 Chiew Poh Kiong v Public Prosecutor
[2001] 4 MLJ (Ian Chin J) 283

A Cases referred to
Empress v Kassim Khan & Anor ILR 7 Cal 121 (refd)
Joginder Singh v PP [1984] 2 MLJ 133 (folld)
Hassan bin Isahak v PP [1948–49] MLJ Supp 179 (refd)
Harun bin Abdullah v PP [1998] 3 MLJ 1 (distd)
Pitchaykutty v PP [1961] MLJ 293 (not folld)
B
Salleh & Anor v Rex [1908] SSLR 27 (refd)

Legislation referred to
Criminal Procedure Code ss 13, 14, 112(2), (3), 118, 119, 129,
C 158(2), 159, 161, 162, 422
Criminal Procedure Code [India] s 161
Penal Code ss 43, 177, 181, 182, 191
Anthony Tai (Anthony Tai Advocates) for the appellant/accused.
Masri bin Mohd Daud (Deputy Public Prosecutor) for the respondent.
D Ian Chin J:

Introduction
Following the quashing on 27 July 1996 of the conviction and sentence of
the accused, Chiew Poh Kiong, and following an order for his retrial, the
E sanction of the deputy public prosecutor was given on 2 September 1996 to
prosecute for an offence of giving false information under s 182 of the Penal
Code (‘the Code’). The accused was brought to court on 7 October 1996
to face a charge that was subsequently, before the trial commenced,
amended on 20 November 1997. The charge under which the trial
proceeded reads:
F
That you on 21 January 1995 at about 10.15am, at Anti Corruption Agency
Office, Kuching, in the District of Kuching, First Division in the State of
Sarawak being legally bound to furnish information in course of police
investigation vide Kuching Central Police Report Station Report No 518/95
did give to a public servant, to wit, En Mohd Yunus bin Sukimin attached to
Anti Corruption Agency Sarawak an information in your statement dated
G
21 January 1995 herewith marked as Lampiran ‘A’ which you knew to be false
and you have thereby committed an offence punishable under s 177 of the
Penal Code.
The words of the underlined part of the statement marked as lampiran ‘A’
and referred to in the charge reads:
H
… Saya lihat isteri saya membuka beg tangannya sambil mengeluarkan
sampul surat Borneo Hotel yang mengandungi wang bertanda berjumlah
RM1,000 dan terus menyerahkan kepada Ah Lek (B1) dengan kedua-kedua
tangan isteri saya. Ah Lek (B1) terus menyambut sampul berisi wang itu
dengan tangan kanan dan pada masa yang sama juga tangan kirinya membuka
laci meja beliau sebelah kiri atas dan memasukkan sampul surat berisi wang
I bertanda RM1,000 ke dalam laci mejanya. Setelah wang dimasukkan ke
dalam laci tersebut dengan pantas, tangan kirinya menutup laci tersebut
semula.
284 Malayan Law Journal [2001] 4 MLJ

The gist of that statement is that the accused said he saw his wife open A
her bag, took out a Borneo Hotel envelope containing marked RM1,000
and gave it to Ah Lek who quickly unlocked his drawer to put the envelope
containing the money in.
The trial was fixed for 13 July 1998 but regrettably was adjourned from
time to time for the most parts for no good reason. The trial finally B
commenced (before a deputy registrar sitting as a magistrate) on 20 March
2000, that is almost three and half years after the accused was first brought
to the court. The trial was staggered because the deputy registrar, apart
from his own duties as such, had also to sit as the presiding magistrate for
the case. Judgment was delivered on 11 October 2000 where the accused
was convicted and sentenced to four months’ imprisonment and fined C
RM500 with a one month default imprisonment. I turn now to the grounds
of appeal.

No sanction for the amended charge

It will be recalled that the sanction was for an offence under s 182 of the D
Code, and the original charge related to an offence under that section but it
was amended to one under s 177 of the Code. No further sanction was
issued. Though it was mentioned that the complaint talks of an offence
under s 181 of the Code, there is nothing on this point as what is relevant is
what the sanction and the charge which finally proceeded are all about.
Mr Anthony Tai, learned counsel for the accused, argued that there was no E
sanction for the amended charge for an offence under s 177 of the Code,
which is common ground, and that is an illegality that cannot be cured
under s 422 of the Criminal Procedure Code (‘the CPC’).
Section 177 of the Code talks of furnishing false information to any
public servant while s 181 of the Code talks of making a false statement on F
oath to a public servant or person authorized to administer oaths. As for
s 182 of the Code, it talks of giving false information to a public servant with
intent to cause him to use his lawful power to the injury of another person.
The provision concerning sanction is s 129 of the CPC and the relevant
part reads: G
Sanction required for prosecution for certain offences
Except in the case of complaints laid by the Public Prosecutor no Court
shall take cognizance —
(a) of any offence punishable under ss 172 to 188 … except with the previous
sanction of the Public Prosecutor or on the complaint of the public H
servant concerned or of some public servant to whom he is
subordinate; ...

Since En Masri bin Mohd Daud, learned deputy public prosecutor, is of the
contention that the lack of sanction can be cured under s 422 of the CPC,
it is to that contention I turn to first. That section (though it is in the form I
after the amendment made in 1998, is in substance the same before its
amendment) reads:
 Chiew Poh Kiong v Public Prosecutor
[2001] 4 MLJ (Ian Chin J) 285

A Irregularities not to vitiate proceedings

Subject to the provisions contained in this Chapter no finding, sentence or

order passed proceed or made by a Court of competent jurisdiction shall be
reversed or altered on account of —

(a) any error, omission or irregularity in the complaint, sanction, consent,

B summons, warrant, charge, judgment or other proceedings before or
during trial or in any inquiry or other proceedings under this Code;

(b) the want of any sanction; or

(c) the improper admission or rejection of any evidence, unless such error,
C omission, irregularity, want, or improper admission or rejection of
evidence has occasioned a failure of justice.

The original section was the subject (among other matters) of decision in
the case of Joginder Singh v PP [1984] 2 MLJ 133, where Ajaib Singh J held
that by virtue of s 422 of the CPC a conviction should not be set aside on
D account of the want of sanction unless it has occasioned a failure of justice.
In coming to that decision, the judge refused to follow Hassan bin Isahak
v PP [1948–49] MLJ Supp 179 which held that the absence of sanction
renders the proceedings null and void and Pitchaykutty v PP [1961]
MLJ 293 which similarly held proceedings without sanction to be null and
void. He disagreed with the two decisions for various reasons. One is that
E they did not take into consideration the earlier case of Salleh & Anor v Rex
[1908] SSLR 27, which held that the want of sanction does not vitiate a
conviction unless there is evidence of a failure of justice. Another reason is
that the judge in Pichaykutty v PP though he followed Hassan bin Isahak v
PP had questioned its correctness. Yet another reason was because a host of
Indian decisions had decided otherwise. I would respectfully follow Joginder
F Singh v PP to say that the lack of a sanction can be cured since there is an
express provision for doing that in s 422 of the CPC. There was no failure
of justice occasioned in this case. Furthermore, the accused was defended
by Mr Tai and he did not raise any objection during the trial as regards the
want of sanction, a matter which this court took into consideration, as did
the court in Salleh & Anor v Rex. In so far as Harun bin Abdullah v PP [1998]
G
3 MLJ 1 is concerned where it was held that s 422 of the CPC cannot be
invoked to cure a breach where it involves the breach of an explicit provision
of the CPC, or where the breach involves a principle of general importance
in the administration of justice, that case involves the question of the
standard of proof, that is, whether prima facie or beyond reasonable doubt,
H for establishing a case for an accused to answer, and there was a failure to
apply the proper standard, and that failure could not be cured by invoking
s 422 of the CPC. The present case is not concerned with the standard of
proof but with the question of sanction. Furthermore, the matter of
sanction, in my view, does not involve any principle of general importance
in the administration of justice. In any event, as correctly pointed out by
I En Masri, s 161 of the CPC allows the court to continue with the
amended charge without the need for further sanction. Section 161 of the
CPC says:
286 Malayan Law Journal [2001] 4 MLJ

Stay of proceedings if prosecution of offence in altered charge requires A

previous sanction
If the offence stated in the new or altered or added charge is for prosecution
of which previous sanction is necessary the case shall not be proceeded with
until such sanction is obtained, unless sanction has been already obtained for
a prosecution on the same facts as those on which the new or altered charged
is founded. B
It will be recalled that sanction was obtained for a charge under s 182 of the
Code, and the charge was amended to one under s 177 of the Code, both
of which relates to the same facts surrounding the furnishing of false
information. Therefore, as provided in s 161 of the CPC, no further
sanction is required. C
Accused was convicted on a plea of not guilty
The prosecution concluded its case after calling five witnesses and the
court, after hearing submissions, ruled on 27 July 2000 that the accused has
a case to answer. The court then sat on 25 August 2000 to hear the defence, D
but on that day learned counsel for the accused told the court that the
accused wishes to remain silent, and the prosecution and the defence then
stated that they adopt the submissions already made as their final address.
Learned defence counsel also said this:
If there is a maximum evaluation of the prosecution case at the end of the
prosecution, then silence on the part of the accused would entail a conviction. E
If, however, there [was no] maximum evaluation of prosecution case at the
end of the prosecution case, then the court would have to consider all the
evidence of the prosecution and then decide whether or not the prosecution
has proved its case beyond a reasonable doubt.
The court then adjourned to 29 September 2000 for judgment. At this
F
hearing, another counsel stood in for the learned counsel for the accused as
he was engaged in another court. The court then proceeded to read the
judgment and the following part is relevant for the present issue, viz:
Having considered the submission of the defence counsel and the prosecution
and having gone through the evidence of the prosecution again, I am of the
view that the amended charged in this case ought to be re-amended as the G
evidence adduced by the prosecution as a whole tended to support beyond
reasonable doubt a charge under the second clause of s 177 of the Penal Code.
Thus, I am minded to amend the charge at this stage as the accused is not
prejudiced by the amendment since it is still under the same s 177 of the Penal
Code as opposed to a different one with heavier penalty or severe sentence
(PP v James Tan [1983] 2 MLJ 173 and PP v Joehari bin Abdullah & Anor H
[1996] 5 MLJ 324, Lim Teck Seng v Reg [1957] MLJ 71, and PP v Salmah
Binte Abdullah and PP v Ong Eng Kiat [1947] MLJ 178). This is to add the
words, ‘and the information which you were bound to give was in respect to
the commission of an offence’ after the word ‘…false…’ in the amended
charge consistent with the second clause of s 177 (see Law of Crime, p 450).
The amended charge is thus re-amended and reads: I
That you on 21 January 1995 at about 10.15am at Anti Corruption
Agency Office, Kuching, in the District of Kuching, First Division, in the
 Chiew Poh Kiong v Public Prosecutor
[2001] 4 MLJ (Ian Chin J) 287

A State of Sarawak, being legally bound to furnish information in the course of

police investigation vide Kuching Central Police Station Report No 518/95,
did furnish information to a public servant, to wit, En Mohd Yunus bin
Sukimin attached to Anti Corruption Agency Sarawak, information as in your
statement dated 21 January 1995 herewith marked as lampiran ‘A’ which you
knew to be false, and the information which you were bound to give was in
B respect to the commission of an offence and that you have thereby committed
an offence punishable under s 177 of the Penal Code’.
The re-amended charge was read and explained to the accused in
Chinese Hakka. He understands the re-amended charge. He pleads not guilty.
As the accused pleads not guilty, and in view of the overwhelming
C evidence against him on the re-amended charge, as the offence having been
proved beyond reasonable doubt, I find him guilty as charged on the re-
amended charge and I enter his conviction
The issue calls for consideration of whether the charge can be amended at
that stage, that is in the course of reading a judgment. The amendment of
a charge is dealt with by s 158 of the CPC.
D
Court may alter or add to charge
(1) Any Court may alter or add to any charge at any time before judgment is
pronounced.
(2) Every such alteration or addition shall be read and explained to the
E accused.
It would appear from that section that the court can amend the charge any
time before judgment is pronounced. It will be recalled that in this case, the
charge was being amended towards the end of the reading of the judgment
but before the conviction was pronounced. Can the amendment then be
F regarded as having been made ‘before judgment is pronounced’? Judgment
in the context of a criminal case would, in my view, involve at least the
finding of guilt by the court and the pronouncement of a judgment means
the reading in open court of this finding of guilt. It is obvious from the
judgment itself that the pronouncement of guilt was only made after the
charge was amended. Therefore, the amendment was in order. This brings
G me to the next question of what the court was required to do after the charge
was amended. Section 158(2) of the CPC comes into play and it requires
the amended charge to be read and explained to the accused. This, the
lower court appeared to have done. In fact, the lower court proceeded with
calling on the accused to plead to the amended charge, and this was
obviously done in compliance with s 159 of the CPC which says:
H
When trial may proceed immediately after alteration or addition
If a charge is framed or alteration or addition made under either of the last two
preceding sections, the Court shall forthwith call upon the accused to plead
thereto and to state whether he is ready to be tried on such charge or altered
or added charge. If the accused declares that he is not ready, the Court shall
I duly consider the reasons he may give and if proceeding immediately with the
trial is not likely, in the opinion of the Court, to prejudice the accused in his
defence or the prosecutor in the conduct of the case, the Court may, in its
288 Malayan Law Journal [2001] 4 MLJ

discretion, after such charge or alteration or addition has been framed or A

made, proceed with the trial as if the new or altered or added charge had been
the original charge.
That provision envisages that there should be a trial when the accused
pleads not guilty to an amended charge. In this case the accused pleaded not
guilty but the lower court nevertheless proceeded to convict him. I can find
B
no provision in the law where the court can find an accused guilty of an
offence after he has pleaded not guilty to an amended charge. In the present
case, the lower court must have been under the misconception that the
choice of the accused to remain silent after being called to enter upon his
defence still pertains. But that was in relation to the previous charge. There
is now a new amended charge which the accused had pleaded not guilty and C
following which the prosecution and the accused may recall witnesses for
examination under s 162 of the CPC. The lower court should have asked
both the prosecution and the defence as to whether any witnesses need to
be further examined and thereafter called for the defence. Instead of doing
that he straightaway convicted the accused despite the plea of not guilty and
without calling for him to enter upon his defence on the new charge. This D
is clearly not in accordance with the CPC and illegal. The conviction and
sentence cannot stand and is therefore set aside. What remains to be
decided is whether there is any impediment for calling for the accused to
enter upon his defence. Learned defence counsel said the court cannot
because a vital ingredient of the offence has not been established, which is
that the accused was not shown to be a person who was ‘legally bound to E
furnish information’.

Was the accused legally bound to furnish information

It was contended by the accused that the persons who are legally bound to
furnish information are only those mentioned in ss 13 and 14 of the CPC. F
Those sections read:
13 Public to give information of certain matters
(1) Every person aware —
(a) of the commission of or the intention of any other person to commit
any offence punishable under the following sections of the Penal G
Code:
121, 121A, 121B, 121c, 122, 123, 124, 125, 126, 130, 143, 144,
145, 147, 148, 302, 304, 307, 308, 363, 364, 365, 366, 367, 368,
369, 382, 384, 385, 386, 387, 388, 389, 392, 393, 394, 395, 396,
397, 399, 402, 435, 436, 449, 450, 456, 457, 458, 459, and 460;
H
(b) of any sudden or unnatural death or death by violence or of any
death under suspicious circumstances, or of the body of any person
being found dead without its being known how such person came by
death; shall in the absence of reasonable excuse, the burden of
proving which shall lie upon the person so aware, forthwith give
information to the officer in charge of the nearest police station or to
a police officer or the nearest penghulu of such commission or I
intention or of such sudden, unnatural or violent death or of the
finding of such dead body as the case may be.
 Chiew Poh Kiong v Public Prosecutor
[2001] 4 MLJ (Ian Chin J) 289

A (2) If any person discovers any dead body and he has reason to believe that
the deceased met with his death through an unlawful act or omission he
shall not remove or in any way alter the position of the body except so far
as is necessary for its safety.
14 Police officer bound to report certain matters
B Every police officer and every penghulu shall forthwith communicate to
the nearest Magistrate or police officer not below rank of Inspector any
information which he may have or obtain respecting —
(a) the occurrence of any sudden or unnatural death or of any death
under suspicious circumstances;
(b) the finding of the dead body of any person without its being known
C how such person came by his death.
It was argued that since the offence of furnishing false information under
s 177 of the Code is not one of those listed in ss 13 or 14 of the CPC, the
accused is not a person who was legally bound to furnish information
notwithstanding s 112 of the CPC which says:
D
Examination of witnesses by police
(1) A police officer making a police investigation under this Chapter may
examine orally any person supposed to be acquainted with the facts and
circumstances of the case and shall reduce into writing any statement
made by the person so examined.
E
(2) Such person shall be bound to answer all questions relating to such case
put to him by such officer:
Provided that such person may refuse to answer any question the answer to
which would have a tendency to expose him to a criminal charge or penalty or
forfeiture.
F
(3) A person making a statement under this section shall be legally bound to
state the truth, whether or not such statement is made wholly or partly in
answer to questions.
(4) A police officer examining a person under sub-s (l) shall first inform that
person of the provisions of sub-s (2) and (3).
G
(5) A statement made by any person under this section whether or not a
caution has been administered to him under s 113(1) shall, whenever
possible, be taken down in writing and signed by the person making it or
affixed with his thumb print as the case may be, after it has been read to
him in the language in which he made it and after he has been given an
opportunity to make any corrections he may wish.
H
Learned defence counsel had in support of his proposition of the law cited
the following passage in Gour’s Indian Penal Code (9th Ed, 1972) at p 441:
Furnishing false information. — Persons affected by this section are those who
are under a legal obligation to assist public servants by furnishing them with
information on stated subjects. Such obligation is cast on the public by s 44 of
I the Code of Criminal Procedure and certain persons are under the additional
duty imposed on them by s 45 of the same Code. In both cases the persons
there mentioned are legally bound to furnish information on the subject
290 Malayan Law Journal [2001] 4 MLJ

therein specified to the police. They are then bound to furnish that A
information to them. But the obligation is not universal for the public at large
are under no obligation to keep the police informed of facts, the knowledge of
which may be to their advantage. The public were, at one time, under an
obligation to answer truly all questions relating to a case under investigation
by the police, but the only obligation the public are under now, since the
passing of the present Criminal Procedure Code, is to answer questions B
relating to a case under investigation other than questions the answers to
which would have a tendency to expose them to a criminal charge or to a
penalty or forfeiture. This obligation of answering questions, does not imply
the duty of furnishing information and it does not, therefore, expose one to the
penalty of this action.
The Indian Criminal Procedure Code (‘the ICPC’) then has a s 161 which C
reads like this:
(1) Any police officer making an investigation under this Chapter or any
police officer not below such rank as the Provincial Government may, by
general or special order, prescribe in this behalf, acting on the requisition
of such officer may examine orally any person supposed to be acquainted D
with the facts and circumstances of the case.
(2) Such person shall be bound to answer all questions relating to such case
put to him by such officer, other than questions and answers to which
would have a tendency to expose him to a criminal charge or to a penalty
or forfeiture.
E
The court in Empress v Kassim Khan & Anor ILR 7 Cal 121 had to consider
the terms of ss 118 and 119 of the CPC (which are similar to s 161 of the
ICPC) which are, respectively, ‘shall answer all questions’ and ‘shall be
bound to answer all questions’ and concluded that they do not constitute
‘an express provision of the law to state the truth within the meaning of
s 191 of the Code since those terms do not impose any obligation on the F
persons to speak the truth. It will be noticed that our s 112(3) of the CPC
carries an obligation to speak the truth. But, since that edition of the book,
Indian Code of Criminal Procedure 1973 (which came into force in 1974) had
changed the law by making obligatory for a witness to speak the truth (the
term, inter alia, ‘truly’ being added) when examined by the police under a
section of the law, s 161 of the ICPC, which is in pari materia with s 112 of G
the CPC. Consequently, Gour’s Penal Law of India (10th Ed, 1982) at
p 1526, added at the end to that paragraph (apart from amending the
section numbers) the following sentence:
Under s 161, CrPC 1973, the obligation to answer truly has been fixed.
H
The Malaysian CPC, s 112(3), which is in pari materia with the Indian
s 161, binds a person making a statement thereunder to state the truth.
Therefore, that passage of Gour (9th Ed), cannot be authority to say that a
statement under s 112 of the CPC cannot be the subject of a charge under
s 177 of the Code. In fact from another passage of the same author (9th Ed)
at p 231) it is clear that the determination of the meaning of the term ‘legally I
bound’ must be done with reference to the s 43 of the Penal Code which
reads:
 Chiew Poh Kiong v Public Prosecutor
[2001] 4 MLJ (Ian Chin J) 291

A The word ‘illegal’ or ‘unlawful’ is applicable to everything which is an offence,

or which is prohibited by law, or which furnishes ground for a civil action.
And in respect of the word ‘illegal, a person is said to be ‘legally bound to
do’ whatever it is illegal in him to omit.
The same author said: ‘The test to see whether a person is ‘legally bound’
B to give information to do anything else is not whether he is enjoined by the
law to give such information or do such thing but to see whether the
omission to do so would be ‘illegal’ within the meaning of s 43 of the Code,
ie, is an offence under the Code, or is prohibited by law or is such as to give
rise to a cause of action for a civil action. Thus the test is a negative one’.
Applying the test, it is clear that the accused was bound under s 112(2) of
C the CPC to answer all questions put to him, that is, he was prohibited by
the law, which is that section, from refusing to answer truthfully. Therefore,
the accused was ‘legally bound to furnish information’ within the meaning
of s 177 of the Code when he was questioned by the police under 112 of the
CPC. This means the obligation to furnish information is not confined to
those cases or situations mentioned in ss 13 and 14 of the CPC but would
D
include cases where a person has been questioned under s 112 of the CPC
since the person is legally bound to answer the questions truthfully within
the meaning of the term ‘legally bound’ in s 177 of the Code as defined in
s 43 of the Code. This must be distinguished from s 182 of the Code which
does not have the term ‘legally bound to furnish’ but covers a case only of
E volunteering information as distinct from s 177 of the Code which deals
with cases that involve a legal obligation.

Conclusions
In the premises, I allow the appeal and set aside the conviction and
F sentence. Instead, the accused shall be called upon to enter upon his
defence to the re-amended charge.
Conviction and sentence set aside and accused called to enter upon his defence to
the re-amended charge.

G Reported by Lim Lee Na