[1997] 2 MLRA Public Prosecutor v.

Audrey Keong Mei Cheng 23

PUBLIC PROSECUTOR
v.
AUDREY KEONG MEI CHENG

Court Of Appeal, Kuala Lumpur

Shaik Daud Ismail, Ahmad Fairuz, Mokhtar Sidin JJCA
[Criminal Appeal No: W-05-96 Of 1995]
20 January 1997

JUDGMENT
Shaik Daud Ismail JCA:
This is an appeal by the Public Prosecutor from the decision of the High Court
which had rejected an application by the Public Prosecutor, to exercise its
revisionary powers.
The facts of the case are that on 14 April 1994 as a result of a police report vide
Jalan Bandar report No. 6191/94, the police arrested one Lim Chin Teik, the
husband of the respondent in this appeal. On 5 May 1994 the said Lim Chin Teik
was formerly charged in the Session Court Kuala Lumpur for an offence of
criminal breach of trust under s. 409 of the Penal Code . He claimed to be tried and
was released on bail of RM500,000.
In the course of their investigation, the police ascertained that the respondent
herein was in possession of share scripts and money pertaining to the criminal
breach of trust case. On 29 April 1994 the respondent turned up at Bukit Aman
where her husband the said Lim Chin Teik was detained, and allegedly agreed that
she would surrender all share certificates and cash RM70,000.
She failed to do so and thereafter never turned up at Bukit Aman. On 11 May 1994
at about 10.30am Corporal 64212 Hamidah bt. Abdul Rahman happened to meet
the respondent at Block K13, Magistrate's Court, Jalan Duta and immediately
arrested her. She was taken into custody and on the next day 12 May 1994 at about
8.15 am she was produced before the Registrar Puan Fadzilah Masaya bt. Mazlan
for her to be detained further under s. 117 Criminal Procedure Code (CPC) .
The learned Registrar rejected the application on the sole ground that the arrest of
the respondent was unlawful and directed the respondent to be released. Against
this order of the Registrar the Public Prosecutor applied to the High Court for the
learned judge to exercise his revisionary powers, under s. 325 CPC . After hearing
arguments, the learned judge agreed with the Registrar's finding and order and
declined to exercise his revisionary powers.
This appeal is on a fundamental point of law on the arrest and detention under s.
117 CPC. Section 117 provides:
24 Public Prosecutor v. Audrey Keong Mei Cheng [1997] 2 MLRA

(1) Whenever any person is arrested and detained in custody and it appears that
the investigation cannot be completed within the period of twentyfour hours fixed
by s. 28 and there are grounds for believing that the accusation or information is
well founded the police officer making the investigation shall forthwith transmit
to the Magistrate a copy of the enteries in the diary hereinafter prescribed
relating to the case and shall at the same time produce the accused before the
Magistrate;
(2) The Magistrate before whom an accused person is produced under this section
may, whether he has or has not jurisdiction to try the case, from time to time
authorise the detention of the accused in such custody as such Magistrate thinks fit
for a term not exceeding fifteen days in the whole.
If he has no jurisdiction to try the case and considers further detention unnecessary
he may order the accused person to be produced before a Magistrate having such
jurisdiction or, if the case is triable only by the High Court, before himself or
another Magistrate having jurisdiction with a view to committal for trial by the
High Court;
(3) A Magistrate authorising under this section detention in the custody of the
police shall record his reasons for so doing.
(The emphasis is ours)
The issue before the High Court and before us is whether the learned Registrar was
right in law in rejecting the application for further detention of the respondent on
the ground that her arrest was unlawful. The learned judge was of the view that in
order for a Magistrate to exercise her discretion under s. 117 CPC the arrest in the
first place must be a lawful arrest. The learned Deputy Public Prosecutor submitted
before us that it was not the duty of the Magistrate at that stage, ie, application
under s. 117 CPC , to question the legality or otherwise of the arrest. We agree
with the contention of the learned Deputy Public Prosecutor. On our perusal of the
provision of s. 117 CPC we could not find anywhere in that section to show that
before a Magistrate can act under that section, the Magistrate has to be satisfied on
the legality or otherwise of the arrest. We are of the view that at that stage of the
proceedings the Magistrate is not to concern himself or herself on the issue of the
legality or otherwise of the arrest. It is not for the Magistrate to decide on the
legality or otherwise of the arrest. To do so would require the Magistrate to embark
on an enquiry which may in turn necessitate the calling of witnesses. That, to our
mind, is not the purport of s. 117 CPC . Section 117 CPC is a machinery to enable
persons arrested under s. 28 CPC to be detained in custody for longer than
twenty-four hours where it appears that investigations cannot be completed within
that period. What the Magistrate has to decide at that stage is whether there are
grounds for believing that the accusation or information is well founded. Therefore
in this case we are of the view that the learned Registrar was wrong in law when
she ordered the release of the respondent solely on the ground that the arrest was
unlawful.
[1997] 2 MLRA Public Prosecutor v. Audrey Keong Mei Cheng 25

Apart from the issue of the legality or otherwise of the respondents arrest, we think
learned counsel for the respondent is on firmer ground when he raises the issue as
to whether in this case the provisions of s. 117 CPC had been complied with when
the respondent was produced before the Registrar.
Section 117 CPC provides that the police officer making the investigation shall
forthwith transmit to the Magistrate "a copy of the entries in the diary hereinafter
prescribed relating to the case and shall at the same time produce the accused
before such Magistrate." The diary herein mentioned, has been prescribed in s. 119
CPC which provides that every police officer making a police investigation shall
day by day enter his proceedings in the investigation in a diary setting forth the
time at which the order, if any, for investigations reached him, the time at which
he began and closed investigation, the place or places visited by him and a
statement of the circumstances ascertained through his investigation. Section 117
CPC makes it mandatory for the police officer seeking a detention order of an
arrested person to produce a copy of such a diary failing which a Magistrate ought
not to entertain the application.
In the present case, let us examine whether the provisions of s. 117 CPC has been
in fact complied with. It cannot be gainsaid that where the liberty of a citizen is to
be curtailed, the law must be adhered to strictly. The record in the present case,
shows that no such copy of the diary, as envisaged by s. 117 CPC , was produced
before the Registrar. What was in fact produced was a letter dated 12 May 1994
addressed to the Magistrate from Latt Mastura bt. Mansor from Cawangan
Siasatan Jenayah Perdagangan, Bukit Aman, setting forth the facts upon which a
detention order was requested for. The fact that a letter was produced before the
Registrar, was conceded by the learned Deputy Public Prosecutor both in the High
Court and in this appeal. He further conceded that it was not a copy of the diary as
envisaged by s. 117 CPC .
In our judgment, it is mandatory for the police to produce a copy of the diary as
prescribed by s. 119 CPC . The details in such a diary would provide a true picture
of the proceedings in the investigation in compliance with s. 119 CPC . Since the
police, in this case, failed to do this, the Registrar would be right, in law, to refuse
to order the further detention of the respondent. Furthermore, on our perusal of the
contents of the "letter" we find that nowhere has it been shown that the respondent
has committed or been involved in any offence for her further detention in order to
complete the investigation. On the contrary, the information shows that she would,
in all probability, only be a potential witness against her husband. We would,
without hesitation, hold that it would be an abuse of the process of law for police
officers to use the machinery of s. 117 CPC , in order to compel witnesses or
potential witnesses to come forward to assist in their investigations. There are other
provisions in the CPC for this purpose.
Therefore in our judgment since the provisions of s. 117 CPC has not been
remotely complied with the Registrar was right albeit for a different reason, not to
 26 Public Prosecutor v. Audrey Keong Mei Cheng [1997] 2 MLRA

order further detention of the respondent.

Before leaving the subject, we would like to make one other observation. During
the proceedings before the High Court a number of affidavits were filed for
consideration both by the prosecution as well as by the respondent for the
consideration of the learned judge. In exercising his powers under s. 325 CPC , the
learned judge has to satisfy himself as to the correctness, legality or propriety of
any finding, sentence or order recorded or passed, and as to the regularity of any
proceedings of the inferior court. In order to do this he has to examine the record
of the proceedings of which has been called for by himself or, as in this case, which
otherwise comes to his knowledge. In exercising his discretion, the learned judge
ought to confine only to the record of the proceedings and nothing else. An
application for revision being essentially a criminal proceeding, it is our view that
affidavit evidence has no place in such proceedings.
For the above reasons we dismiss this appeal.

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