Harun J reminds us about the principles that must be followed when a person is charged. In short, NO ONE SHOULD BE CHARGED IN Court UNLESS the Investigations are Completed, and the Prosecution verily believe that they have sufficient evidence to prove to the Court that the crime accused had been committed by the accused - Prima Facie or Beyond Reasonable Doubt. To do otherwise results in a GRAVE INJUSTICE to the accussed person
The principle is that a person should not be charged in Court until the investigation into the case against him has been completed and there is prima facie evidence to prosecute him of the charge. In other words, a person should not be put in peril of a criminal trial unless the prosecution is able to prove the case against him. To do otherwise is an injustice.The case also reminds us when the police should arrest a SUSPECT. Thus, do not arrest simply based on fact, a police report has been filed. The police should INVESTIGATE first, including maybe the alleged suspect too. But NO ARREST until investigations done.
With all the facilities at its disposal, the police should refrain from the practice of "arrest first, investigate later".... It is public knowledge that crime is rampant and that the police have a difficult job to do. But there are adequate provisions in the Criminal Procedure Code giving the police powers to release persons on bail after arrest pending investigations: see ss. 28, 29, 387 and 388 of the Criminal Procedure Code. The procedure to be followed, therefore, should be to investigate first and arrest later. In cases where it is more expedient to effect an immediate arrest, the police should release the person arrested on police bail if investigations cannot be completed to enable a charge to be preferred before the Magistrate.
Simply put, arrest should happen after the police investigates any report, and find sufficient evidence to arrest. Even, after arrest, detention on remand for the purposes of investigation is frowned upon, more so if it is NOT for the purpose of investigation that justifies detention. Even, after arrest, it is BEST that the person be released on police bail - which could have conditions to not leave the country or run away. The law advocates that even after remand, no one should be charged until investigation is complete, and there is prima facie evidence to prosecute him of the charge.
Note, in Malaysia, we recall the cases like Najib where he was never detained in remand - and only charged when the prosecution had sufficient evidence. In other words, a person should not be put in peril of a criminal trial unless the prosecution is able to prove the case against him.
Does this mean that prosecution cannot further investigate - No, it does not. During trial, if during cross-examination or when during Defence stage, new evidence arises or doubts arise with regard to prosecution existing evidence, the naturally prosecution will investigate further - to again ensure that they still have sufficient evidence to convince the Court beyond reasonable doubt that the accused is guilty of the offence he/she is being charged with.
But, the main point here is that before anyone is charged - Prosecution must have 'prima facie evidence to prosecute him of the charge' and the prosecution is convinced honestly that they are '...able to prove the case against him...'
See also:-
DISCHARGE(DNAA) for Yusoff Rawther - No person to be charged until investigation complete ## still waiting for '..results of the substances which has been sent to the Department of Chemistry to be analysed..'
PUBLIC PROSECUTOR v. TAN KIM SAN
HIGH COURT, KUALA LUMPUR
HARUN J
FEDERAL TERRITORY CRIMINAL REVISION NO 6 OF 1980
20 FEBRUARY 1980
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CRIMINAL LAW AND PROCEDURE - Application for postponement on ground that investigations not completed - Magistrate should exercise his power to discharge accused - Criminal Procedure Code (FMS Cap 6) s 173(g). |
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Legislation referred to: Courts of Judicature Act, s. 35 Criminal Procedure Code, ss. 28, 29, 120, 173(g), 387, 388 |
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Counsel: For the public prosecutor - Yusoff bin Wali (DPP); M/s. Lim Soh Wah & Co. For the respondent - Bhagwan Singh |
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Harun J:
In this case the accused was alleged to have committed breach of trust of more than $20 in cash between 21 May 1974 and 6 April 1978.
The complaint against him was made on 22 May 1978 and he was charged before the Magistrate on 9 June 1979. He claimed trial and hearing was fixed for 6 February 1980.
When the case came up for trial, the prosecuting officer applied for a postponement of at least six months on the ground that investigations had not been completed, whereupon the learned Magistrate postponed the trial to 16 & 17 July 1980.
I sent for the records of this case under s. 35 of the Courts of Judicature Act as it appeared to me that an important matter of principle and procedure is involved here.
The principle is that a person should not be charged in Court until the investigation into the case against him has been completed and there is prima facie evidence to prosecute him of the charge. In other words, a person should not be put in peril of a criminal trial unless the prosecution is able to prove the case against him. To do otherwise is an injustice. It is unjust because of the social stigma that immediately attaches to a person once he is charged in Court. He is deserted by his friends. His business is affected. His creditors close on him. His family is ashamed. He is mentally tormented awaiting trial.
And last but not least, he has to incur the expense of engaging Counsel. There is no consolation in the fact that he may eventually be shown to be innocent of the charge. The damage has been done.
To prosecute a person in Court on a criminal charge, therefore is a grave responsibility. With all the facilities at its disposal, the police should refrain from the practice of "arrest first, investigate later".
That this is a matter of serious concern to the community is shown by these facts:
It is public knowledge that crime is rampant and that the police have a difficult job to do. But there are adequate provisions in the Criminal Procedure Code giving the police powers to release persons on bail after arrest pending investigations: see ss. 28, 29, 387 and 388 of the Criminal Procedure Code. The procedure to be followed, therefore, should be to investigate first and arrest later. In cases where it is more expedient to effect an immediate arrest, the police should release the person arrested on police bail if investigations cannot be completed to enable a charge to be preferred before the Magistrate. The police undoubtedly have powers to arrest without a warrant from the Court in most cases but the power of arrest should not be confused with the subsequent duty to charge in Court a person against whom there are reasonable grounds to believe that he has committed a criminal offence. The second stage, however, is only reached when investigations have been completed because only then would the facts to prove the case be available on which to frame a charge. Without such facts, no charge can be drawn up for the simple reason that the charge contains the accusation. That there is a clear distinction between arrest and prosecution is clearly set out in s. 120 of the Criminal Procedure Code. The police have powers of arrest and investigation but prosecution is the province of the Public Prosecutor. In cases where the police prosecute, they do so on behalf of the Public Prosecutor, always. It follows that when the police exercise the delegated powers of prosecution, they should always ask themselves the question whether the Public Prosecutor would institute a prosecution in the circumstances of the case.
Turning to the facts of this case, the accused is alleged to have committed criminal breach of trust over a period of four years. It took the police more than a year to investigate yet when the case came up for trial some eight months after the accused was first charged in Court, investigations had still not been completed and the police say they need at least another six months. This is a clear case of premature prosecution. What if the investigations disclose that there is insufficient evidence to prosecute the accused or worse still, if he was innocent of the allegation after all. On these facts, the charge as it stands, is clearly groundless. In these circumstances, the learned Magistrate, ought to have exercised his powers under s. 173(g) of the Criminal Procedure Code and discharge the accused instead of granting a postponement of the case. I would advise Magistrates to exercise their powers under s. 173(g) of the Criminal Procedure Code whenever the prosecution asks for a postponement of a case on the ground that investigations have not been completed.
I direct that the case be remitted to the learned Magistrate to-day for the order to be made. Order accordingly.
[1980] 1 LNS 66Also found in [1980] CLJU 66; [1980] 1 LNS 66; [1980] 2 MLJ 98; [1980] 1 MLRH 450
Harun a fearless champion of justice 1 Oct 2003 12:00 am
©New Straits Times
(Used by permission)
by Lakshmi Natarajan
Oct 1: THE life of Tan Sri Harun Mahmud Hashim, 74, is like a tapestry
embroidered with events lived in historic times, the life of a man with a chequered career.
Patient, incorruptible, dignified and respectful to those who appeared before
him, he was held in high regard by fellow judges, lawyers and the public.
Described as a fearless champion of justice and a brave prosecutor who never
hesitated to withdraw charges if there was insufficient evidence, this man has
won accolades for his ingrained sense of dignity and fair play.
Hearing a criminal case, he once said: "The duty of a judge is to administer
justice ...justice for the accused as well as justice for the victim. This is
very important. Parliament makes the law and the job of judges is to interpret
the law. Sometimes this may result in an injustice, and you have to do something
when injustice is staring you in the face." In another case, on sentencing, he
said: "The most difficult part of a magistrate's or judge's job is to impose an
appropriate sentence in each case. That is why it is important that a judge be
given wide discretion on this matter." Harun earned himself a reputation as a
controversial judge for being outspoken in reviewing the Federal Constitution
and some of his opinions, such as introducing an elected Dewan Negara or
repealing the country's Emergency laws, have not gone down well with some.
He declared Umno unlawful on Feb 4, 1988. He dismissed the suit against Umno
brought by 11 members and in his decision declared that the party was an
unlawful society when its 38th general assembly and election took place on April
24, 1987. He said: "Very sadly, I have to make a finding in law that, at the
material time, Umno was an unlawful society." Harun has heard numerous cases,
both criminal and civil, but one which stands out, which goes only to emphasise
his meticulous nature, is that of a Colombo Plan expert who was charged with
murdering his wife.
This man bought a parang from the then Selangor Emporium in Jalan Tuanku Abdul
Rahman, chopped her up, put her in a trunk and buried her in his garden.
This case, which was referred to as the "body–in–the–trunk case", was well into
trial before a jury when a police witness testified that the accused told him he
had murdered his wife.
Harun reprimanded the officer for giving such prejudicial evidence before a
jury, and irrespective of the time and effort which had gone into the trial, he
immediately ordered a re–trial before a different jury, ruling that if the trial
continued it would not be fair to the accused.
Harun, a handsome figure of a man with wavy steel–grey hair, admitted to being
outspoken even to his superiors but they respected him for his reliability.
He said: "When you are right, or think you're right, you have to speak up and be
honest with yourself." You could see that he enjoyed his cases. But at times his
remarks were laced with sarcasm and there was a bluntness in his remarks which
made many a lawyer cringe.
But if Harun displayed this characteristic, he was not unjustified. He read his
files thoroughly before going on the Bench and expected those appearing before
him to do the same. He often told lawyers appearing before him to make
submissions only on selected points and issues which needed to be clarified, but
this often threw counsel, who came prepared to submit from A to Z, out of gear
and left them flustered. But if a lawyer could make the submissions that Harun
wanted, he would have earned the judge's respect and admiration.
Off the Bench, Harun was a simple man: witty, very friendly and approachable,
full of little stories, many of them amusing. One such story was about greetings
people extend to one another. Having spent a few years in India, he said when
two Indians met they asked each other whether they had eaten. This was because
there was so much poverty and many wonder where the next meal was going to come
from. Therefore, they were preoccupied with food. When two Malays met, they
asked: "Apa khabar?" This was because in olden days, people in rural areas did
not have newspapers and information was passed by word of mouth. They were keen
to know what was happening around them. When the British met, they usually spoke
about the weather which was miserable on most days. And Arabs greeted one
another with: "Peace be with you." Therefore, he said, cultural patterns were
determined by circumstances.
Harun used to recall with pride the day he was elevated as a High Court judge on
March 27, 1971. He took his oath of office before the then Chief Justice H.T.
Ong. A short while later, he sat on the Bench of the High Court dressed in the
robes and wig which he inherited from his father. He said when London tailors
asked his father for his measurements when he became a judge, his father gave
Harun's measurements. And his father told him: "Son, you will be wearing these
one day." Harun has not only related this story to his friends but also
mentioned it in his column The Benchmark, which had appeared weekly in the New
Straits Times. He went on to say that in those days the judge had to pay out of
his own pocket for the wig and robes which amounted to a considerable sum.
He always said there never was a dull moment in his life and there had been
various twists and turns when he least expected them. He was specially thankful
to his father for having prepared him well to accept life's challenges. One of
the first things his father taught him was cultural integration. He was a young
lad in 1948 when his father, a pragmatic man, decided that the best way to
prepare his son for a multi–racial society was for him to live with each
community "because the Chinese and Indians are here to stay". Harun was packed
off to live with a Chinese family for a year and an Indian family for the next.
He said he learnt a lot during this period but one thing he found frustrating
was learning to eat differently. He was introduced to chopsticks by the Chinese
family and had to eat out of a banana leaf with the Indian family. Both
practices were alien to him and mealtimes were not a joy.
Harun said he always wanted to study medicine and he also had a fascination for
journalism, but somehow ended up in the civil service. But that is hardly
surprising because civil service was a family tradition for him. His grandfather
was one of the first Malays to join the elite Malayan Civil Service, and was
later a nominated member of the Straits Settlement Legislative Council.
His father M.M. Hashim, was trained as a lawyer and notched many years in the
Kelantan Legal Service before ending up on the Bench where his intolerance for
any sort of noise during proceedings earned him the nickname "Moody Hashim".
Harun was appointed a High Court judge in 1971 and president of the Industrial
Court in 1980.
He returned to the High Court in 1985 and was appointed a Supreme Court judge
the following year, an office he held until his retirement in 1994.
He was instrumental in bringing about changes in the judicial system. The
setting up of the Industrial Court, the Small Claims Court and the various
sections within the High Court to deal with different matters were his
brainchild.
Harun, born in Edinburgh in 1929, was sent to India in 1943 where he studied at
the University of Travancore in Kerala, India, where he also learnt to speak
Malayalam, Hindi and French.(He also spoke Tamil and Cantonese.) He joined the
Kelantan Civil Service and served as Assistant District Officer and magistrate.
He later read law at Lincoln's Inn, London, and was called to the English Bar in
1958. He returned in 1962 and joined the Judicial and Legal Service serving as a
deputy public prosecutor and federal counsel in the AttorneyGeneral's Chambers.
He rose to be president of the Sessions Court, and it was while serving as Kedah/Perlis
State legal adviser that he was asked to head the newly set up Anti–Corruption
Agency in 1967 which he did for four years until his appointment as a High Court
judge in 1971. In recognition of his honesty and integrity as the country's
first ACA head, he was awarded the inaugural National Integrity Medal by the
Kuala Lumpur Society for Transparency and Integrity in November 2000. During
Harun's term of office, he greatly improved public confidence in the ACA.
After retiring from government service in 1994, Harun continued to be active in
the legal fraternity and was appointed a member of the Syariah/Law Committee of
the Islamic Development Department of Malaysia (Jakim) and a judge and permanent
panel member of the Federal Territory Syariah Court of Appeal.
In 1996, he was appointed Dean of the Law Faculty, International Islamic
University.
In November 2001, Harun launched a compilation of his articles which appeared in
the New Straits Times in a book entitled The Benchmark.
He was also editor–in–chief of the Annotated Statutes of Malaysia,
editor–in–chief of the Malaysian Court Practice and chairman of the editorial
advisory board of the Current Law Journal. In 2000, he was appointed Suhakam
vice–chairman.
In the international arena, Harun participated as an international observer of
the parliamentary election of Sri Lanka and as a technical adviser to the
Cambodian Development Council.
This tribute to Harun will not be complete if I do not mention the personal role
he played in my life. I was a cub reporter in the early 1960s and he a deputy
public prosecutor. He prompted my husband who was then a court interpreter to
befriend me. He told my husband: "There is a nice thangachi little sister)
there." And so our courtship began.
Thank you, dear Harun. - Malaysian Bar Website
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