DEC 5 — The police are generally empowered by the Police Act 1967 (Act 344) to investigate the commission of any offence and to apprehend the party responsible.

The police are also empowered under the Criminal Procedure Code (CPC) (Act 539) to carry out their investigative functions and duties. The CPC is the general law on criminal procedure. It sets out, among others, the manner in which the powers of investigation are to be exercised.

The general powers of the police to investigate any offence include investigation at the scene, making inquiries as to the facts and circumstances of the case, taking action to find, locate and preserve any relevant evidence or suspected evidence, and to interview any person who may be able to assist the investigation.

The investigating officer (IO) has the power to require the attendance before him of any person who appears to be acquainted with the circumstances of the case under investigation. If any such person refuses to attend as required, the IO may report such refusal to a Magistrate who may in his discretion issue a warrant to secure the attendance of that person as required by such order.

The IO, upon the attendance of the said person, would interview him and reduce into writing any statement or information gathered from that person who, in turn, is bound to answer all questions relating to the case put to him by the IO. He may, however, refuse to answer any question the answer to which would have a tendency to expose him to a criminal charge or penalty or forfeiture.

He is otherwise legally bound to state the truth, whether or not the statement he made is wholly or partly in answer to questions.

The IO must first inform the person of the requirements referred to above – that is, he is to answer all questions and is legally bound to state the truth.

The IO is required to maintain a diary of proceedings in relation to the investigation. Upon the IO completing the investigation, he is required to refer the investigation papers (IPs) to the Public Prosecutor (PP) to obtain further directions as are required including whether there is to be a prosecution brought against any person on the basis of the evidence discovered.

A person who has given information (informant) relating to the commission of an offence may request for a report on the status of the investigation (status report) of the offence complained of in his information from the officer in charge of a police station (OCPS) where he gave the information.

The status report must be given by the OCPS to the informant not later than two weeks from receipt of the request.

However, no OCPS is required to provide the status report:

(1) unless the offence complained of is a seizable offence;

(2) unless a period of four weeks has lapsed from the date of the giving of the information; and

(3) where it contains any matter that is likely to adversely affect the investigation into the offence or the prosecution of the offence.

Where a request has been made and the OCPS has failed to furnish the informant with a status report within the specified period, but subject to the exception where the report need not be provided, the informant may make a report to the PP of the failure.

Upon receipt of the report, the PP must direct the officer in charge of the police district (OCPD) to furnish him with a detailed status report on the investigation that has been conducted by the police in relation to the offence in the information given by the informant.

The PP must cause to be furnished to the informant, or direct the OCPD to furnish to the informant, a status report containing such information as may be directed by the PP.

Apart from the police, an officer of the Malaysian Anti-Corruption Commission (MACC) is also empowered to carry out investigative functions and duties. Such officer is empowered to investigate (i) any suspected offence; (ii) any suspected attempt to commit any offence; and (iii) any suspected conspiracy to commit any offence under the MACC Act 2009 (Act 694).

Section 10(5) of the Act declares in no uncertain terms that an officer of the MACC "shall have all the powers of a police officer of whatever rank” as provided for under the CPC. Such powers "shall be in addition to the powers provided for under the Act and not in derogation thereof”.

In the event of any inconsistency or conflict between the provisions of the Act and those of the CPC, it is declared that the provisions of the Act "shall prevail”.

Accordingly, one must not lose sight of Section 29(4) of the Act that information relating to the commission of an offence under the Act "shall be kept secret and shall not be disclosed by any person to any person other than officers of the Commission and the Public Prosecutor until an accused person has been charged in court for an offence under this Act or any other written law in consequence of such report, unless the disclosure is made with the consent of the Public Prosecutor or an officer of the Commission of the rank of Commissioner and above.”

Arguably then, a person under examination by an officer of the MACC under Section 30 of the Act is not entitled to information relating to the commission of an offence under investigation.

The Act is a special legislation. It governs a specific subject matter (lex specialis) and therefore overrides, or prevails over, a law governing only general matters (lex generalis) – that is, the CPC.

Generalia specialibus non derogant – the general does not derogate from the specific.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.