Making a covering report and counter report, and “withdrawing” a police report
Grandville, J. -J. Cent Proverbes (1845) Henry Fournier, Paris.
Caption: “Les loups ne se mangent pas”, closest interpretation into English is “Wolves don’t prey on Wolves.”
A Covering Report is a police report made by someone as a precaution against any legal action against him.
A Counter Report (Laporan Balas) is a police report made by someone already under investigation, to redirect the investigation to someone else (including back to the original complainant) or to put his defence forward or both.
Covering Reports and Counter Reports are terms of convenience used by laypersons and lawyers to represent their tactical purpose. They are not defined nor specially recognised in law. Their content may be sim Under the Criminal Procedure Code (CPC), reports are recognised under Section 107(1) as information received by police relating to the commission of an offence, who are obliged to reduce such information into writing. In fact the word “information” is used instead of “report” in Sections 107, 108 and 108A of the CPC.
The usefulness of Covering Reports and Counter Reports are as tools in your tactical response to exposure to criminal and civil liability. They are not necessarily considered “independent corroboration” in the true sense as understood in evidence law. However, they do have some relevance for consistency and other nuanced purposes in a dynamic, contentious case.
Do you need to lodge a police report, covering report or counter report in all cases?
No, it is situational. Lodging a police report just gets the ball rolling on a criminal investigation. It is not necessary to lodge a police report for every thing that you are dissatisfied with. And it is not always required to lodge a report for civil cases. I find that many people have abused the concept of giving information to the police. We can see this when they “threaten to report to the police!” or when they broadcast photos of themselves and their followers in front of the police station, holding up a copy of a piece of paper, presumably their police report.
This could be because the public have failed to educate themselves on the proper purpose of a police report, what it can be used for, the ethical aspects of report, the consequences and implications of report on the complainant and on others. Television dramas and political circuses only worsen such misconceptions.
Furthermore, Section 114 of the Criminal Prosecute Code prohibits the police from discouraging you from giving them information (with a view of lodging a report).
As a side note, I think police should not allow underaged minors to lodge reports under their own name — the police should lodge the report themselves : Some thing like, “Pada tarikh xxxx ketika saya bertugas di inkuiri Balai Polis Seremban, saya telah didatangi seorang kanak-kanak ditemani oleh seorang pegawai JKM dan telah mengadukan telah dicabul oleh bapa tirinya”. Underaged persons do not fully grasp the full effect and consequences of such report, and they are often manipulated and used as tools by irresponsible parties, within and outside their family. For that reason, the consequences of lodging a false report may not impress such young person. Imagine filing charges of lodging a false report or perjury against a child.
Not all police reports will be investigated
Not all complaints are actually “investigated” (I say this in the broad sense). Sometimes the police decide that the report does not disclose an offence or a complaint of a criminal matter and may then refer your complaint to a magistrate (RTM). The police may even notify you that No Further Action (NFA) is directed for the file — only a Deputy Public Prosecutor has the power to make this decision. A long time ago, I have heard that in some states, the power to decide on lower-end cases (charge, NFA, further investigation) had been delegated to even Senior Investigating Officers (SIO) but I do not know if this delegation is still practiced (never mind whether such delegation is valid or not).
Whistleblowers and Informants
These concepts are interrelated across different laws. I hope to write about them in another article.
Covering Report
The real “sting” of a Covering Report is it is the first report made. You lodge it as your tactical “first strike” and this enables you to cover a lot of ground. It enables the Complainant to control the narrative of the case at the earliest stage and introduces himself to the law enforcement landscape before anyone else. The rival parties or opponents may not even realise that a Covering Report was made. Therefore the maker of the Covering Report benefits from a head start in time.
Under Section 107A of the CPC, only the Complainant has the right to receive updates on the progress of the investigation. Therefore the person who is first to the police report, benefits from the power of information as well. During the course of statement recording, which may take place over multiple sessions sometimes, the IO would tend to divulge other information that even the Complainant might not expect.
What to say in your Covering Report
This depends on the context and purpose of your report.
State your position, your locus or where you are coming from and the reason for lodging the report. “Saya merupakan pengarah pengurusan dan syarikat XYZ…” And the report with your reason for making the report, for example, “Untuk melindungi kepentingan saya dan syarikat…” or “bagi tujuan tindakan sivil”, “kerana saya bimbang keselamatan saya dan anak-anak”. As mentioned, for many types of civil cases a police report is not always necessary nor does it contribute much to the case. Things like fraud, breach of trust, e.g. civil cases that have some element of criminal dishonesty should always include a police report — a delay can be explained with a passing one-liner in the report — but give more detail in the police statement. On the issue of safety, it may unhelpful for your case if you make a report in fear of your safety against a suspect, and then the facts show that after your report, you continued to interact with the suspect as though there was no fear.
When in doubt, brevity (being brief) is better than being detailed. It is a police report after all, not an encyclopaedia of the whole case. It only initiates an investigation (if at all).
Since it is a covering report, you need to decide whether you will address the threat you are covering from expressly or impliedly or not at all. “Saya telah menerima Laporan Audit Tahunan yang menyatakan terdapat lebih bayaran yang tidak diambilkira berkenaan transaksi ABC…”
Be careful about disclosing what information you have in your possession at that time. Qualify your information with words like “difahamkan”, “berdasarkan makluman daripada …”. Your failure to take precautions or to act a particular way may be held against you if you admit to possess certain information at a particular time.
Be careful about the date you received the information that you act on. Late disclosure can be held against you in some contexts. You need not overexplain the reason for delay, it is a report after all. If you have to, as mentioned, a passing one-liner would do.
Do not be shy about saying, “dan lain-lain perkara yang belum dikenalpasti” or “dan lain-lain barangan yang masih dalam proses pengesahan” or some other non-definite, non-confirmatory phrases that makes it look like you are doing something about it proactively.
Naming and shaming, protecting yourself and “tai chi”. This is what a covering report is really about isn’t it? Best get professional advice about this. The confidentiality protecting your information to the police is notoriously porous; do not assume that the person you shamed will not find out that you named them and that they will do nothing about it.
Sometimes it is a wise tactic to put forward your suspicions. Sometimes it can backfire later. Whatever you choose, do not use firm and committed words unless you are sure about it. Be prepared to back up your assertions because the police will ask.
Be careful about naming your sources. Sometimes it is a good idea, sometimes it means your potential opponent will know who they should study and attack. In the right situations you can just say, “Berdasarkan maklumat daripada Unit Pemasaran” or “Saya didatangi Puan Azlina, ibu rakan anak saya yang memaklumkan telah nampak sekumpulan remaja memecahkan tingkap kereta saya…” or “saya telah dimaklumkan oleh anak Encik Sabri bahawa Encik Sabri telah menampar anak bongsu bernama Khatijah sehingga dia terjatuh pengsan,” if you are confident about your source. Otherwise, the source could just be another detail that need not be disclosed from report.
Counter Reports? (“Laporan Balas?”)
If you are advising a person who is on the receiving end of an accusation in a police report (i.e. a suspect or Orang Yang Di-Syaki, OYDS) you cannot obtain the police report as of right nor are you entitled to know the status of the investigation (status as in, in the same way as a Complainant/informant under Section 107A of the CPC).
Often, covering reports have the same characteristics of counter report. For this purpose, I think counter reports are made when your client knows there is a case made against him. A covering report is made as a preventive measure when the client knows that a case may be made against him soon.
In one of my cases, the counter report had an interesting presentation because it was made immediately after he was summoned by the police to record his statement. The client remembered the questions asked of him and the allegations made, and responded accordingly. You may wonder why make a report when the statement was already given — well we all know how police reports only present the suspect’s version according to a line of questioning that the IO wants. Come trial time, how far does the Court accept your client’s assertion under oath that he did not disclose a particular fact “kerana Pegawai Perakam tidak bertanya berkenaan perkara itu.” From our past cases, we know well that the last question, “Adakah apa-apa yang anda mahu pinda atau tambah?” is not a serious question from the Recording Officer / IO and more of a formality, which the suspect does not even realise the import and effect, or even the need to benefit from legal advice.
Your client must react proactively as soon as possible because you do not know the level of savvy or maliciousness of the rival side. You do not know how much information he has secreted from the police. You do not know how much false information this rival has provided to the police.
Your client could try to make a counter-report and follow up from there. So far I have not received the same quality of feedback in counter-reports compared to normal police reports. Usually there is zero feedback. From my experience, counter-reports have ended up being attended to by the same IO as the main police report, so that could be the source of the problem.
Unfortunately, you do not have a say in determining the police personnel who attends to your report. Do not hope for much objectivity by the police toward your counter-report because the Complainant had already controlled the narrative from the main Police Report. You would need to disclose some ground breaking revelation supported by strong evidence to impact the course of the ongoing investigation let alone receive updates on the status of investigation. Bonus points if your counter-report can redirect the police against the Complainant.
Counter Report with different agency
In one example, a counter-report was lodged by a suspect with a different agency, which did not investigate the main report. This different agency then arrested all those witnesses that snitched against him in the main report. This may or may not work and is a risky approach, depending on many factors. My speculation is, for this to work, the counter-report needs to be made to an agency with the requisite jurisdiction, resources, resoluteness and reputation. In my view, you are more likely to receive a status report on your counter-report if it was lodged with a different agency. This helps to avoid your counter-report being referred to the same officer who investigated the main report. Unless you are confident you can sway them to your side.
So, if you have a good case, you could consider filing a (counter) report with another agency. If you are lucky, the two agencies will not even check with one another.
In some scenarios, this could even work against you. Remember, in the criminal justice system, all roads lead to the Public Prosecutor whose prosecutorial power permeates all agencies, even the most influential and independent ones. They know how to weigh a genuine case from a smokescreen.
False Reports
It is a serious offence to lodge a false report. Even if only a small part of the report is false, the entire report is considered false. I will not go into detail on this issue of false reports or its implications.
Do not advise your client to make a false report. It is unlawful and risky.
Tarik Balik Repot
I have discussed this in an earlier writing, so I will skip the introductions. I wish to add a few points on discontinuation of a case when the matter has gone for trial. As explained, you do not have control over whether a trial proceeds or not. Once the case has gone to court, it is in the hands of the DPP and the Court. Even the police’s influence has diminished at that stage.
This is what you can do:
“Tarik balik repot”
Write to the DPP
When you are called to testify as a witness, inform the court that you do not wish this matter to continue.
A combination of some or all the above.
In practice, this is what is meant by “tarik balik repot”: Go to the same police station that you lodged the first report, and lodge a second report. In this second report, you shall refer to the first report and state that you do not wish to pursue the matter. There is no fixed format — I have seen terms used such as “tarik balik repot”, “tidak ingin memanjangkan perkara ini” “tidak ingin meneruskan kes“.
A lawyer friend informed that there was a case where after "the complainant had “tarik balik repot”, the IO called him and scolded him for having lodged the second report without first consulting the IO. I do not know what is meant by consulting the IO. All police reports are interlinked on the police’s online system and your second report would have ended up in sight of the IO anyway.
In my earlier writing, I have explained that there is no such thing as withdrawing a report. Your police report will exist in the police records until Judgment Day. You cannot erase or delete it by lodging a subsequent report. When you lodge a report to express your wish to discontinue the investigation, it is a bit weird because that very report is not information relating to the commission of a crime. What you should do is to write to the DPP to inform them that you do not wish the matter to proceed. Furthermore, if you lodge a report, the IO who takes the stand may be cross examined on it, and it may lead to consequences beyond your control.
Good DPPs will instruct the IO to record a further statement from you to explain what is meant by this so called laporan tarik balik kes. Do not interpret this further statement as a way to intimidate you or to discourage you from “discontinuing” the case. The Government has every right to ascertain your position, after having expended cost and time and manpower on a case which you later were no longer interested. The Government also wants to make sure that you did not lose interest in the case due to being bullied or threatened by the accused/suspect or bribed.
Your own wishes is actually irrelevant. But it is very relevant if you admitted that your report or previous statement was false. You should give good reasons because it is unlawful to lodge a false report, to give false information to the police or to give false evidence in Court. You could say that you were under duress or you mistook some facts as true but later discovered they were untrue. You really should consult an independent lawyer (independent means, not one referred by the IO, the accused/suspect or the lockup police) because you could be treading into dangerous waters. An independent lawyer can also independently advise you whether there are indications that you are being used, cheated, manipulated, being subject to great legal risk and the like. An independent lawyer could also advise you whether it is a proper and legally safe case for you to demand compensation from the suspects or even the government.
Good Samaritans and Busybodies?
If you are not part of the case, but you are aware that someone is manipulating a child into withdrawing a criminal case, you are under no legal obligation to do anything. But if the child is under your care under the Child Act 2001, you have certain duties to protect the child from non-violent abuse. We should not need a law for this but we do. Get advice from experienced professionals if you face such a quandary. Otherwise, being a busybody in the Malaysian legal system is unrewarding and thankless.
Unfortunate Practice by a Small Number of Prosecutors
I call on the Right Hon Attorney General to put a stop to this practice by a small number of prosecutors, especially in Magistrate Court matters, to call the victim/complainant to testify that he or she has lodged a report to withdraw the complaint, and to state that they do not wish to pursue the case. Almost all prosecutors I know do not do this because we know there are smarter and fairer ways to get the job done. If there is an Arahan Peguam Negara or Pekeliling that recommends this, it should be amended/superceded. If there is none, then the State Director of Prosecutions should ensure their subordinates toe the line.
Defence Counsel
[ Things to watch out for when the Client “tries” to get the Police Report to be Withdrawn ]
Generally, Defence Counsel do not play much part on the subject of withdrawing police reports, except that they would pray that the court makes an order that the accused be acquitted and discharged (A&D) and not discharged not amounting to an acquittal (DNAA).
My learned friends, we all know that we must be vigilant in our line of work. A reminder to you and myself as well, to be vigilant about attempts by our clients to broker an out of court settlement to make a criminal case disappear. Remind them about the relevant law. If they act against your advice and without your knowledge, you have a valid reason to discharge yourself. Framed in the wrong context (perhaps due to the fault of the client, too), the Malaysian Anti Corruption Commission officers lay in wait. Years ago, I was appointed to represent a former District Officer at Court of Appeal stage. He allegedly offered to bribe a complainant to withdraw her police report of sexual harassment against him, the evening before his trial for molesting her. So the molest case and the corruption case became 2 separate cases. It came up in evidence that it was the defence counsel who said the case could be settled that way (by paying off the complainant). Lo and behold, the MACC arrested the accused — not yet my client at the time. His defence (found to be afterthought, if I remember correctly) was that the RM30,000 cash found on him was intended to be paid to a unit trust agent for investment purposes. I regret that the name of the defence lawyer was mentioned by a witness and allowed to be tarnished; the lawyer was not in court to defend himself, not having been summoned by either the prosecution nor the defence. He was a senior counsel of some standing and it seemed unlikely he would go loose and easy on dangerous advice, if he even did give such advice. You know, lawyers we just do our job as instructed, in accordance with law and what ethics require of us. We cannot control what our clients and former clients and non-clients say about us. Blaming your lawyer for your own illegal acts does not shift the blame. You appoint and pay your lawyer to advise and defend you according to these earthly laws, not to go to Hell for you.
Defence Counsel
[ Settling Criminal Cases the Safer, Codified Way ]
The amendments to the Criminal Procedure Code provides for satisfactory disposition of case, related to discussions during the pre-trial conference and plea bargaining. There are provisions for order of compensation to be made to the victim. Parallel civil suits can also help.
Otherwise we should remain firm with the law. The fact that some people still think criminal cases can be settled out of court by agreement, written or otherwise, shows there are some of us who still do not understand the risks, effect and long-term consequences of inducing a complainant to withdrawing their police report. Commissioners of Oaths should decline to affirm and Statutory Declarations or witness any documents resembling a settlement for a criminal case. Lawyers have been advising the public for years that such agreements are unenforceable and may even be illegal. But some persons keep shopping for a lawyer until they get one who tells them what they want to hear. Don’t be that kind of lawyer, and don’t be that kind of client (but you do have the right to get a second opinion).
The only “agreement” (I’m pitching this in a broad sense again) that is worth signing in a criminal matter is under the provisions for satisfactory disposition of case and plea bargaining. That means a deal with the Public Prosecutor. It’s in the law. As written earlier, sometimes the DPP will send a unilateral reply to your representasi agreeing to withdraw the charge or offer an alternative charge on the basis that your client does something (pleads guilty is the most popular). In my view, theoretically the DPP can offer your client almost anything, even your client’s promise to pay compensation to the victim. But I have not seen this myself — I have only seen this done in a plea bargain setting before open court (Kajang and Ampang) and not in their reply to your representation. Presently I am working on a plea bargain in Jalan Duta Court.
Courts should Reject Such Testimony
“The Court is not a dumping ground!”
Courts should reject such testimony too. What is the relevance of the complaints word that they do not wish to pursue the case? Which part of that fits in the meaning of relevancy under the law? The complaint’s/victim’s attitude on the date of trial (i.e. reluctant to proceed or eager to proceed) does not have a bearing on the question of whether the incident happened or did not happen. His Lordship Dato’ Zaki Yassin remarked in a case I handled, “The Court is not a dumping ground!” Likewise the Court should not be used as a “tool” to legitimise the discontinuation of the case or to make the DPP look like they are being transparent. Experienced Judges especially those who have been DPPs, Federal Counsel or litigation lawyers, they know that wheeling and dealing can happen even with all that show of transparency.
Even worse, if the complainant/victim is a child. What does it say about a society who burdens an underaged person with the decision to proceed or not to proceed with a case that is already in Court?
I have witnessed Magistrates who actually directed the DPP to produce the witness. The Court should stay out of this. Let the DPP satisfy the Court under Section 254 of the Criminal Procedure Code.
The case law shows that the DPP should inform the Court:
the reason that they need to withdraw the charge (e.g. investigations are incomplete, they are tracing an important witness, they need to re-file charges in another jurisdiction, we want to KIV the charge until the accused gives testifies for the prosecution in a different case against a different accused — on this last point I won’t comment on its propriety). Whether the complainant wants to proceed or not should not be a factor. If you are not careful you could expose the complainant to a civil suit by the accused.
whether the Prosecution intends to prosecute in the future within a reasonable time. If it is a short time, perhaps it is better to just adjourn the case, to spare the accused and the court the inconvenience. For example, suppose the victim is still traumatised and cannot go on for now. Perhaps the DPP can procure professional advice whether the witness should take the stand. If the witness should never take the stand (trauma, damaging to the victim, etc), then the DPP should of course consult their superiors. The Evidence of Child Witness Act 2007 can help with underaged witnesses (Sections 6 - 8 of the said Act). I do not know whether Section 32(1)(a) of the Evidence Act 1950 can be used for this situation; I do not think it is. Just ask for a DNAA and inform the court that your request is backed by a psychiatrist / psychologist’s report that the witness is unable to testify for the time being. With a DNAA, at least the court gets to refresh the case number, reset to the current month of the new charge (unless it is a continuation under Section 254A — to avoid this pitfall just make sure you call the victim first).
My view is, those DPPs who like to call victims to testify that they do not wish to pursue the case, should follow the good example of DPPs who do not.
I understand the arguments behind Section 254 of the Criminal Procedure Code. DPPs should follow the law and elegantly submit based on the many precedents that favour the prosecution. As Dato’ Nordin Hassan advised in one of his training sessions I attended as a young prosecutor, “Jangan berhujah melalui saksi” which he (now His Lordship) explained, do not call witnesses to testify on matters that should be for the DPP to submit.
Article 145 of the Federal Constitution is gives the power to our learned crown counsel to discontinue their cases (almost) at a whim. Why then the need to make a show of it by calling the victims — men, women and children — up on the stand? DPPs are supposed to be chivalric and protect victims of oppression, not to use them to prevent "A&D” or to make it look transparent. Stop it now, today.
What if the Complainant and Victim are 2 Different People?
It doesn’t really matter. The Prosecution does not even need a human victim complainant. The police can act on information, or the security officer in charge of CCTV surveillance who captured a crime on tape can make the report, even if the victim did not.
The Prosecution can charge a suspect even if the victim is reluctant. I have discussed this in detail in my writing on Plea Bargaining.
Police who receive such reports from complainants (non-victims) should not decline to register such reports. They should reduce it into writing as required by the Criminal Procedure Code. However they would be interested to know why the victim themselves do not lodge the report, especially an adult, competent, unhospitalised victim.
I do not think it is necessary to wait until the victim has been discharged from hospital — any family member can lodge the report but they should have some information of the commission (or at least the effect of) the criminal offence.
Conclusion
Commencing and discontinuing a criminal case is a grave matter that can dramatically change the life of the complainant, victim and suspect forever. The public needs to be educated on their rights and responsibilities on information they give to the police and their role and influence in an ongoing criminal case. It cannot be overemphasised that the Right Hon Attorney General has an important role to disseminate the clear directions on this subject to avoid abuse of victims and to manage risk on prosecutors at lower courts.