JANUARY 11 — The case of Muhammad Shafee bin Md Abdullah v Public Prosecutor [2019] MLJU 755 is an interesting one to illustrate the duty to produce.
In that case, the applicant by way of Notice of Motion supported by Affidavit sought no less than eight orders from the High Court. The first two orders were:
(i) that the respondent (the Public Prosecutor – PP) produces a copy of the letter of appointment (LOA) executed by the PP in relation to the appointment of Datuk Seri Gopal Sri Ram (Sri Ram) as a senior Deputy Public Prosecutor (SDPP) purportedly under Section 376(3) of the Criminal Procedure Code (CPC);
(ii) that the PP simultaneously provides the applicant with copies of the document pursuant to (i) above.
The applicant argued that as he was challenging the existence and legality of Sri Ram’s appointment as SDPP, there was a legal obligation on the part of the PP to provide evidence of Sri Ram’s appointment.
The applicant cited Section 376(3) CPC which outlines that every criminal prosecution may be conducted by a SDPP, a Deputy Public Prosecutor (DPP) or the PP himself.
It was submitted that a search on the Federal Gazette revealed that Sri Ram’s appointment had not even been gazetted though the Attorney General (AG), who is also the PP, had himself caused three (3) other appointments of DPP to be gazetted.
The applicant therefore said that there was nothing produced to establish that Sri Ram was actually an authorised person to have conduct of the prosecution in the case.
The applicant further cited the case of Public Prosecutor v Dato Seri Anwar bin Ibrahim [2014] 1 MLJ 633, where the LOA under Section 376(3) CPC was exhibited and referred to by the Court of Appeal in that case.
It was therefore submitted that the PP’s failure to produce the LOA was contrary to his legal duties.
The PP derives his rights of audience from Article 145(2) of the Federal Constitution and which rights trickle down via Section 376(3) CPC. The PP may delegate his powers via the provision at his discretion. This discretion can only be made manifest through a valid LOA.
In reply, the PP submitted that the applicant was not entitled in law to the LOA. Neither could he view the terms of the appointment.
The copy of the LOA could not be given to the applicant as a matter of right. The PP submitted that the practice that previous appointments of counsels as DPPs was always tendered in court must be based on law and not practice.
The PP then submitted that Section 376(3) CPC and Chapter XXXVII of the same Code in general do not require the production of a LOA of a DPP by the PP before the Court.
It was submitted therefore that the Court could not create procedures to cater to the request made by the applicant.
The PP submitted further that the LOA requested to be produced and given to the applicant did not fall within a class of document under Section 51A CPC which was required to be supplied to the applicant. The demand for the production of the LOA and its copy was therefore misconceived in law.
In his rulings, High Court Judge Collin Lawrence Sequerah (as he then was), said:
“With regard to the application by the applicant for the production of the LOA, I find that procedurally, there is nothing that mandates production by the Public Prosecutor of the LOA. (Emphasis added)
“This is evident by the wordings in Section 376(3) of the Criminal Procedure Code itself under which Dato’ Gopal Sri Ram was appointed.”
After citing the provision in full, the learned judge continued:
“The court also cannot create procedural requirements where there are none. See Lee Kew Sang v Timbalan Menteri Dalam Negeri & 2 ors [2005] MLJU 667, which held:
It is not for the courts to create procedural requirements because it is not the function of the courts to make law or rules. If there is no such procedural requirement then there cannot be non- compliance thereof. Only if there is that there can be noncompliance thereof and only then that the courts should consider whether, on the facts, there has been non-compliance.”
“The only documents required by law to be produced are those under Section 51A CPC, a copy of the information made under Section 107 CPC relating to the commission of the offence to which the accused is charged, if any, a copy of any document which would be tendered as part of the evidence for the prosecution and a written statement of facts favourable to the defence of the accused signed under the hand of the Public Prosecutor or any person conducting the prosecution.
“The LOA clearly does not fall within this category.”
On past practice of producing LOAs, the learned judge said:
“There is also merit in the submission that past practice per se cannot be made the basis for the production of the LOA as the production of the same has to be pursuant to procedural law.”
Accordingly, the learned judge dismissed the applicant’s prayer or request for the production of the LOA.
If nothing mandates the production of a document, an order of mandamus should also not lie against a public authority should such order be sought from the High Court.
Mandamus, after all, is a command or an order issued by the court to an authority to perform a public duty placed upon it by law.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
