Dear Editor,
AS A law student, i am baffled over how a recent murder in Keningau was being handled all the way to the court.
"Daily Express reported (DE 18.9.11) that a single mother who has kid was stabbed to death at her home. A police inspector who came to her aid in Taman Adika, Keningau, was also injured in that incident. That police officer was later remanded under Section 117 of the Criminal Procedure Code for an alleged offence under Section 302 of the Penal Code for further investigating. The inspector was then relesed on police bail, perhaps pending reports of post mortem and DNA.
Isn't this double standards in enforcing criminal procedure laws on persons accused of murder? My Understanding is that if a person is arrested and remanded for an offence, then there must be some evidence of the crime committed by that person against whom a remand order had been obtained. Or there must have been enough grounds for his arrest.
As i understand it, investigations commence soon as a police report is lodged and statements are raken by the police from the person who has been remanded or from witnesses but a police report is not a must for any police investigation to start.
When there is a public outcry or when a person is murdered, the police must commence immediate investigation as happened in this case with or without a report being lodged.
When the inspector was arrested by thir very own investigating officers, definitely the investigation authorities need to resort to Section 23 (1) of the Criminal Procedure Code which provides that where any seizable offence has been committed anywhere in Malaysia, any police officer or penghulu may arrest without a warrant any person who has been concerned in any such offence or againtst whom a reasonable complaint has been made or against whom credible information has been received or against whom a reasonable suspicion exist.
‘Credible information’ (Maklumat yang boleh dipercayai) means that the information is reliable or can be believed. With regard to ‘Reasonable suspicion’ when an objective test is applied, a reasonable man would have suspected that the remand detainee may have committed the act.
Once investigation has been completed during the remand period and before the expire of the remand order the investigation papers are sent to the Deputy Public Prosecutor's office for their final say on whether to charge the accused in court.
If there is reasonable ground for the Deputy Public Prosecutor to believe that the inspector has been guilty of an offence punishable with death or imprisonment for life, then the Inspector should not be released on bail but remanden pending other reports to be completed.
After obtaining the DNA or chemist report and after reading the investigation paper thoroughly and if the DPP sees no prima Facie case has been established against the Inspector, only then he shall be released unconditionally by giving DAA.
The inspector is to be detained only if there is prima facie evidence against him. The offence under Section 302 of the Penal Code is unbailable and there is no discretion on the courts or the police to grant bail in such circumstances if there is a prima facie cae against the inspector.
There is no such thing as DPP having powers to authorise the police the grant police bail to the said Inspector for an offence committed under Section 302 of the Penal Code if the DNA or Chemist reports are not yet available.
In this case, there appears suspicion that the Inspector has committed a crime under Section 302 of the Penal Code. Hence, it was improper to grant the Inspector Police bail pending the DNA and pos mortem reports.
In all cases, it has been a norm that suspects in murder cases are remanded in the prison pending the outcome of post-mortem report and DNA report because there is bound to be further evidence obtained from such investigation.
The DNA and Post-mortem reports will only act to corroborate other evidence obtained by the police. Unless what I learnt in law schools is rubbish, it was wrong to release the accused on police bail pending the outcome of DNA and chemist report.
If there is no evidence at all to link the police Inspector to the crime, then the must be guven a certification of ‘NFA’ by the Deputy Public Prosecutor's Office. If no Such certificate is given or minuted in the investigation paper, then the process of granting police bail to an accused pending DNA and Post-Mortem report is wrong in law, if there is some evidence to link the accused to the Crime.
Reference is made to Article 8 (1) of the federal Constitution that states "All person are equal before the law.
"Therefore it is said that the released of the said Police Inspector on Police bail contradicts Article 8(1) of the federal Constitution. Suffian LP in Public Prosecutor V. Khong Teng Khen [1976]2 MLJ 166 said:
“The principle underlying Article 8 is that a law must operate alike on all person under like circumtances, not simply that it must operate alike on all person in any circumstances, nor that it must be general in character and universal in application and that the state is no longer to have the power of distinguishing and classifying person... for the purpose of legislation, kedar Nath V.State of West Bengal AIR [1953] sc 404, 406.”
In My opinion, the law may classify person into children, juveniles and adults, and provide different criteria for determining their criminal liability or the mode of trying them or punishing them if found guilty; the law may classify person into women and men, or into wive and husbands, and provide different right and liabilities attaching to the status of each class; the law may classify offences into different categories and prostat that some offences be triable in a magistrate's court, others in a session court, and yet other in the high court:
The law may provide that certain offences be triable even in a military court; fiscal law may divive a town into different areas and provide that ratepayers in one area pay a higher a lower rate than those of another area, and in the case of income tax provide that millionaires pay more tax than others; and yet in my judgement in none of these cases can the law be said to violate Article 8.
All that Article 8 guarantees is that a person in one class should be treated the same as another person in the same class, so that a juvenile must be tried like another juvenile, a ratepayer in one area should pay the same rate as paid by another ratepayer in the same area, and a milionaire the same income tax as another milionaire, and so on.
I am sure the public is watching every step the law enforcement authorities are taking and it appears to my student mind that where a person wields power and influence, the law is abused.
As the public and society gets more and more learned like me, the question on equality before the law will turn the tables on the authorities and their integrity will be questioned by the public.
Best Regards,
LAW STUDENT
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