Law on obstructing public servant discharging public functions — Hafiz Hassan

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NOVEMBER 11 — I refer to the letter “Arrest of former Umany president Wong Yan Ke is unwarranted.” According to the writer, it is crucial to understand the provision of section 186 of the Penal Code. After setting out the provision in full, the writer proceeded to explain the same. Reference was made to the case of PP v Mohamad Sabu [2012] 5 CLJ 246.

In that case, the accused was charged under section 186. He was acquitted and discharged without calling for his defence as no prima facie case was made out against him. The prosecution appealed on no less than 10 grounds.

Ever so sharp and alert on the law, the learned High Court Judge was of the view that the case could expeditiously be disposed off on the single ground that the charge against the accused was defective.

This was then that the learned judge explained that “section 186 requires mens rea of the accused to be established before the accused can be found guilty of an offence under the section. The section requires the obstruction must be voluntarily made.”

The learned judge went on to explain the meaning of the word “voluntarily” before perusing the charge as it stood against the accused. This was when the learned judge found that the charge was bereft of the word “voluntarily” as well as the expression “in the discharge of his public functions” which form two essential ingredients of the offence.

Any criminal lawyer worth his salt would tell you that the charge was substantially defective as disclosing no offence under the section. Importantly also, the defect was not curable under section 422 of the Criminal Procedure Code.

Now, to better understand section 186, reference should have been made to the case of Tan Teck Yam v PP [1968] 1 MLJ 57 which the learned judge in Mohamad Sabu's case dutifully did but the letter writer, curiously, did not.

In that case, Raja Azlan Shah J (as HRH then was) explained:

“For an offence under s 186 of the Penal Code the prosecution has to prove the following: (1) that there was obstructing of a public servant, (2) that the public servant was at that time discharging his public function, and (3) that the person obstructing did so voluntarily.

“It is in my view clear that to obstruct under s 186 of the Penal Code is to do an act which makes it more difficult for a public servant to carry out his duties. I take that definition of 'obstruction' from the [English] case of Hinchliffe v Sheldon.”

As a matter of fact, more than 20 years earlier in 1940, the word “obstruction” had been decided to mean “some interruption or hindrance to the progress of work being carried out by a public servant in the discharge of his public duties, and such public servant may be directly or indirectly obstructed.” (see PP v Bahadar Khan [1940] 1 MLJ 180)

Based on the above, it is a question of fact whether an act or acts amount to an obstruction. To borrow the words of Justice James in the English case of Rice v Connolly [1966], there may be circumstances in which the manner of a person together with his handphone recording the police conducting a raid could amount to an obstruction within section 186.

Whether they do is a question of fact and remains to be decided.

The rule of law — that no one is above the law — applies to the state and private citizens — even the most public spirited of them all.

* This is the personal opinion of the writer(s) or organisation(s) and does not necessarily represent the views of Malay Mail.