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Disclosure in Criminal Proceedings
I. DISCLOSURE IN GENERAL
disclosure is A right to compel somebody to produce requested documents
II. DISCLOSURE UNDER S. 51
A. ACTUAL PROVISION
Section 51. Summons to produce document or other things.
(1) Whenever any Court or police officer making a police investigation considers that the
production of any property or document is necessary or desirable for the purposes of any
investigation, inquiry, trial or other proceeding under this Code by or before that Court or
officer, such Court may issue a summons or such officer a written order to the person in
whose possession or power such property or document is believed to be requiring him to
attend and produce it or to produce it at the time and place stated in the summons or
order
(2) Any person required under this section merely to produce any property or document shall
be deemed to have complied with the requisition if he causes the property or document to
be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed to affect the provisions of any law relating to
evidence for the time being in force or to apply to any postal article, telegram or other
document in the custody of the postal or telegraph authorities.
B. COMMENTARY
1. Section 51 CPC gives power to the court to issue a summons to a person and
to the police officer making a police investigation to issue a written order to the
same category of person requiring him to attend and produce the document or
property at the time and place stated in the summons or order if it or he considers
that the production of the property or document is necessary or desirable for the
purposes of any investigation, inquiry, trial or other proceeding under the CPC.

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C. THE NEED FOR SECTION 51
1. In a criminal trial, neither party can obtain evidence from the opposite side by
means of an interlocutory or discovery of document. – PP v Teoh Choon Teck
2. In a situation where there is evidence (document/ thing ) which may be
relevant to one party which is in the possession of the other party or third party, the
party who wishes it to be produced may then apply for summons (production order)
from the court under section 51 CPC to compel the production of the said
document/thing.
3. An accused may wish to rely on a document in the possession of the
prosecution, which may dislodge (displace/dislocate) the prosecution’s case or
strengthen his defense.
4. The document/thing has to be those which are not disclosed pursuant to
s.51A
5. He may then invoke the provision of s. 51 to have the document produced.
6. Section 51 CPC enables an accused to have evidence to be produced for
inspection which would support his case which is in the possession of the
prosecution or third party.
D. THE LIMITATION ON THE IMPLEMENTATION UNDER S. 51
PP. RAYMOND CHIA KIM CHWEE & ANOR [1985] – SELESAIKAN MASALAH
INTERPRETATION DALAM KES TEOH AND SYED KAT BAWAH
1. When s. 51 says “necessary or desirable for the purposes of any investigation,
inquiry, trial or other proceeding”, it makes itself available either before the
commencement of a trial or in the course of a trial.

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a) The Court has to consider the justice of the case and at what stage of
the proceeding the application is made.
2. If the stage is prior to the commencement of the trial, regard must be had
to the requirements in ss. 152, 153 and 154 CPC inclusive, that is, that a charge must
contain sufficient particulars of the offence.
a) IOW, if the charge specifically mention about the documents, the
defence must be given the right of inspection.
b) In other situation, the Court would have to be more careful and decide
on the justice of the case by applying the rules of relevancy.
3. The entitlement of the accused to any document or other material in the
possession of the prosecution is entirely at the discretion of the court having
regard to the necessity, desirability, relevance to the case and justice of the case.
OTHER AUTHORITIES
PP v Teoh Choon
Teck [1963]
WIDER INTERPRETATION
 the language of the section is very wide but before issuing a summons
under that section the court is bound to consider judicially whether the
production of the documents is necessary or relevant for purpose of the
inquiry, trial or other proceeding.
 the thing called for must have some relation to, or connection with, the
subject-matter of the investigation or inquiry or throw some light on the
proceeding, or supply some link in the chain of evidence. Anything which
may reasonably be regarded as forming part of the evidence in the case
may be ordered to be produced, and that is the primary object of these
provisions.
Syed Abu Bakar
bin Ahmad v
STRICTER INTERPRETATION (KRITIK KES TEOH)
 s. 51does not allow an accused to ask for discovery or inspection of

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PP [1982] documents seized by the police in the course of investigation or in their
possession before the criminal trial.
 To do so would tantamount to inspection of evidence of the prosecution by
defense prior to the trial.
Sohoni’s Code of
Criminal
Procedure 1973,
19th
edition Vol 1
 If the object of the inspection is merely to fish out for information, it is not
permitted by the law
E. HOW TO ENSURE APPLICATION UNDER S. 51 IS SUCCESFUL?
1. Section 51 is applicable to document or material in the possession of the
prosecution or any other party.
2. The document or thing must be clearly specified to be produced and the
specific time for it to be produced so as to afford the party a reasonable opportunity
for producing the document at the trial.
3. A general direction to produce all materials relating to the subject in dispute
will not be enforced.
4. If there are documents which are relied upon by the accused either for
dislodging the prosecution case or for building up his own case, he will have to take
out a summons for its production
F. WHAT IF THE APPLICATION IS UNSUCCESFUL?
1. The effect of the decision or order to issue a summons under s. 51 CPC is that
it is a final order and therefore appealable under s. 307(i) of the CPC : PP v Raymond
Chia Kim Chwee & Anor

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G. RELATIONSHIP BETWEEN S.51 CPC & S. 66 EA
1. Section 51 is invoked in order to enable the production of secondary
evidence. This will complement section 66 of the Evidence Act 1950.
2. Documents sought will be relied upon by the accused either for dislodging
the prosecution case or for building up his own case.
3. Application must be made at an appropriate time.
4. Where a document is in the possession of the adverse party and before
secondary evidence of the contents of that document can be given:
a) The party intending to produce it in court must prove that sufficient
and timely notice to produce that document has been given to the adverse
party or his solicitor in cases where notice is necessary.
b) The reason why notice to produce is required is not to give the adverse
party notice that the document will be used so that he is enabled to prepare
evidence to explain or confirm it, but merely to exclude the argument that
the party desirous of proving the document has not taken all reasonable
means to procure the original.
H. WHEN APPLICATION UNDER S. 51 SHOULD/ COULD BE MADE?
1. Application for an order or summons under section 51 may be made at any
stage of the proceedings.
2. Be that as it may, there are two (2) stages for such an application to be made.
It is PRETRIAL and IN THE COURSE OF TRIAL - PP v Mohd Fazil Awaludin [2009].

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3. The element of desirability or necessity for the production of the document is
dependant on:
a) which particular stage of trial or point of time when such application is
made and
b) the type of documents/material requested.
I. APPLICATION MADE PRE-TRIAL
1. When an application is made at this stage, the court must have regard to
section 152 to 154 CPC (provisions on “charges” in a criminal proceeding).
2. An accused is entitled to documents mentioned in the charge so as to enable
him to give instruction to his counsel and to prepare his defense.
3. Confined to matters specified in the charge.
4. Refer kes Raymond Chia balik, kat no 2 specifically.
a) The court is always mindful of the following factors when it exercises its
discretion to issue a production order under s. 51 CPC:
.
5. However in the case of Datuk Tiah Tee Kian [2002], the High Court departed
from the case of Raymond Chia. In that case it was held that in view of the following:
Right to fair trial;
Equality of
arms;
Right to prepare defense
adequately;
Justice of the
case
Complicated
nature of the
charges;
The complexity of the alleged
transactions, the numerous
documents involved;
The relevance of the documents to
the charges as conceded by the
prosecution;

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Facts The accused was allowed disclosure of all documents seized in the course of
investigation to assist him to prepare his defense adequately.
Held the situation in the case merit an exception to the general rule as laid down by the
Supreme court in Raymond Chia.
6. S. 51CPC is applicable to an accused, prosecution and also to any concerned
3rd party
J. APPLICATION MADE IN THE COURSE OF/DURING TRIAL
1. If an application is made in the course of trial; an important consideration will
be the relevancy of the document/thing to the issue in question at that stage.
a) Hence it will be the duty of the defense to convince the court on the
relevancy of the document/thing and for the prosecutor to argue that it is
irrelevant if he objects to the said application.
2. Normally the application is made after the commencement of the trial, long
after evidence has been adduced by the prosecution. In such a case the court will
have sufficient information to decide on the issue of relevancy.
3. Hence it can be argued that the appropriate time for an accused to make an
application will be at the defense stage, at which stage the court will be in a better
position to consider the relevancy of the document or material sought.
a) Singaporean case: Kulwant v PP [1986]
Held:  an accused may have access to documents mentioned in the charge
 an application under section 51) can be made to the trial court only after the recording
of prosecution evidence has commenced
 Only in the course of proceedings will there be material on which the court can decide
on relevancy and the necessity or desirability of compelling production of the required

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documents.
 Hence the application ought to be made after the commencement of the proceeding.
 The exception being where the documents are referred to in the charge
4. Remember : If any document is necessary or desirable for the defense of the
accused, the question of invoking s. 51CPC at the initial stage of a charge may not
arise as the defense of the accused is not relevant at that stage.
K. NON- COMPLIANCE OF S. 51 : PP V AU SHE CHUN
1. court may
a) warrant contempt proceedings
b) search warrant
c) charge under s. 175 of PC (however the court is not entitle grant
discharge not amounting to an acquittal.
L. RELATIONSHIP BETWEEN S. 51 AND S. 116 CPC
1. IO kena comply with order made pursuant to s. 51

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III. DISCLOSURE UNDER S. 51A
A. ACTUAL PROVISION
Section 51A. Delivery of certain documents.
(1) The prosecution shall before the commencement of the trial deliver to the accused the
following documents:
(a) a copy of the information made under section 107[FIR] relating to the commission of
the offence to which the accused is charged, if any;
(b) a copy of any document which would be tendered as part of the evidence for the
prosecution; and
(c) 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.
(2) Notwithstanding paragraph (c), the prosecution may not supply any fact favourable to the
accused if its supply would be contrary to public interest.
(3) A document shall not be inadmissible in evidence merely because of non-compliance with
subsection (1).
(4) The Court may exclude any document delivered after the commencement of the trial if it is
shown that such delivery was so done deliberately and in bad faith.
(5) Where a document is delivered to the accused after the commencement of the trial, the
Court shall allow the accused—
(a) a reasonable time to examine the document; and
(b) to recall or re-summon and examine any witness in relation to the document.
1. Commentary: Mandatory obligation, however not applicable in security
offence [read together with SOSMA]

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B. PURPOSE OF S. 51A
1. Prosecution shall deliver documents stated in the section to the accused that
would form part of the prosecution’s case to the defense before commencement of
trial.
2. An accused is entitled to those documents stated in section 51A and nothing
more.
3. Minister of Home Affairs in Parliament:
a) Pemberian apa-apa dokumen atau laporan yang akan dikemukakan
oleh pihak pendakwa dalam kesnya kepada pihak pembelaan untuk
menyediakan kes mereka dengan lebih sempurna.
b) Ini akan membawa keadilan kepada tertuduh dan semua pihak.
c) menjimatkan masa mahkamah dimana pihak pembelaan dapat
menyediakan kes mereka dengan lebih sempurna.
4. PP v Mohd Fazil Awaludin
a) the general of s. 51A is to advance the overall fairness, justice, efficiency
and the truth finding elements of criminal proceedings, the overriding object
is to deal with cases efficiently and expeditiously.
b) The section is designed to ensure that there is a fair system for the
disclosure, especially of unused material which may assist the defence in the
timely preparation and presentation of its case
C. EFFECT OF THE INCLUSION OF 51 A
1. Evidence which may be prejudicial to the accused before trial ought to be
avoided from being brought to notice of the court.

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2. The inclusion of section 51A CPC has not changed the principles under section
51 CPC.
3. A fairer and more equitable trial process does not mean that the prosecution
must supply all the documents and exhibits seized by the police. See s. 51A (3)-(5) –
ada limit
D. NON COMPLIANCE TO S.51A
PP v Mohd Fazil
Awaludin [2009]
 It is mandatory.
 But the non-compliant will not render the trial a nullity.
 Not fatal, unless the court satisfied that the accused has been prejudiced.
 It is only procedural and not evidential.
Lee Lu Chaung v
PP [2010]
 Magistrate fix a trial date without compliant to s. 51A although insisted
by the accused.
 Magistrate ruling: s.51A merely to facilitate a trial and the provision can
be complied during trial.
 trial should not commence until s.51A is complied with.
 It is mandatory on the part of PP to supply the documents as requested
E. CAN A PERSON SEEKING REMEDY FROM CIVIL COURT?
1. DSAI v Mohamad Hanafiah Zakaria [2010]
Facts  Accused charged with s.377A PC, made request s.51A based on written statement
that favourable toward him.
 DPP replied by a remark of “TIADA”.
Held  The remedy available before the criminal court during trial process = right to a
fair trial of the accused had not been adversely affected.
 It is an abuse of the process to seek the aid of the civil court to review the written

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statement
 the consequence of the non-compliance did not make the trial a nullity. In the
CPC, there is a distinction between provisions that prescribe the manner of trial, such
as ss. 399 and 402A, and those that provide for the conduct of the trial, such as s.
51A.
 Disregard of a provision under the former is fatal to the trial and would at once
invalidate the conviction. However, disregard of the latter is not fatal unless the court
is satisfied that the accused has been prejudiced.
 It is also to be noted that unlike in the UK, the scope of s. 51A in Malaysia is rather
limited. More, the provision of s. 51A is not mandatory but only directory in nature
F. WHAT IF THE PROSECUTION DOES NOT WISH TO DELIVER DOCUMENTS TO THE
ACCUSED PERSON ON THE GROUNDS OF PUBLIC INTEREST OR ANY OTHER GROUNDS?
1. Surely the accused person can file action to the court to challenge the
grounds of the decision by the prosecution.
2. When this happened, there will be adjournment pending actions by the
accused either by judicial review or criminal review and/or appeal. It will defeat the
purpose of s. 51A CPC
IV. RELATIONSHIP BETWEEEN 51 AND 51 A
A. PP V DATUK SERI ANWAR BIN IBRAHIM
“the effect of the High Court’s order was that the issue of the production of the documents and
materials by the Public Prosecutor pursuant to s 51 of the Code had finally disposed of whereby the
Public Prosecutor was ordered to supply the documents or materials to the Respondent”. On
substantive appeal, the Court of Appeal held that “As can be seen from the authorities mentioned
above the exercise of this discretionary power by the court under s 51 of the Code with regard to the

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application at the pre-trial stage has been limited. The court construed the section strictly. Except as
what is provided for under s. 51A of the Code the Respondent is not entitled to discover or inspect
evidence or material in the possession of the prosecution before the commencement of the trial.
Based on the past decisions of the apex court we were of the view that the Respondent was not
entitled to get the order he prayed for in his Notice of Motion.” On appeal, the Federal Court on 29 th
January 2010 had affirmed the decision by the Court of Appeal.
1. It shows that the principle in s. 51 CPC is still applicable and relevant despite
the introduction of s. 51A CPC.
2. Section 51A CPC is expressly provides for the First Information Report,
document or report which the prosecution intends to tender at trial and the
statement of fact favourable to the defence only.
3. One can say that s 51A CPC is an automatic disclosure by the prosecution
only to the three types of ‘documents’ as compared to s. 51 CPC which provides the
discovery upon request
V. DIFFERENCE BETWEEN 51 AND 51A
Factors 51 51A
Sape yang boleh minta Accused, police, mahkamah Accused jek
Apa yang bleh diminta Doc/ things 3 dokumen tu je, refer s. 51
(1) (a-c)
Jenis kuasa mahakamah discretionary mandatory
Bila boleh apply Whenever necessary (masa inquiry,
trial, other proceedings)
Masa ptcm je sblm trial

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