The Trial is Fatal as Prosecution Failed To Submit an Omission To Adduce A First Information Report As An Exhibit At The Trial: TEO THIN CHAN & ANOR v. PUBLIC PROSECUTOR HIGH COURT [KUALA LUMPUR] SMITH, J

TEO THIN CHAN & ANOR v. PUBLIC PROSECUTOR
HIGH COURT [KUALA LUMPUR]
SMITH, J
[CRIMINAL APPEAL NO 19 OF 1957]
2 JULY 1957

JUDGMENT

Smith J:

This was a private summons. At the trial the evidence of the complainant consisted of herself and her mother who was very much an interested party. The alleged assault took place in August 1956, and a report was made about that time to the police. In December 1956, a complaint was made to the Magistrate and the case was heard before the learned Magistrate on 29 January 1957. At the trial the complainant failed to produce a certified copy of the report which she made to the police in August 1956, very shortly after the alleged assault.

I agree with learned Counsel for the appellants that the rule in Chin Khing Siong v. R [1952] MLJ 74, applies to the facts of this case. In that case the evidence for the prosecution consisted solely of that of the complainant and Spenser-Wilkinson J held that if the prosecution failed to produce the first report to corroborate the testimony of the complainant (which is possible under s. 157 of the Evidence Ordinance) then the presumption arises under s. 114(g) of the Evidence Ordinance that that report which could have been and had not been produced would, if produced, have been unfavourable to the complainant.

In this case the complainant is not the only witness; she is supported by the evidence of her mother. The mother, however, was very far from being an independent witness and for this reason I consider that it was necessary for the complainant to support her evidence with that of the first report. This first report not having been produced at the close of the prosecution case, the learned Magistrate should not have called upon the two appellants for their defence. I accordingly reversed the finding and sentence and acquitted the appellants.

Appeal allowed.