Five Common Mistakes When Dealing with the Investigating Officer
Gustav Doré (1854) Œuvres de François Rabelais (p. 209), Paris J. Bry Aîné. “Moved to Chinon, an ancient city, if not the first in the world.”
From our experience advising clients and enforcement agencies, these appear to be the most common mistakes when dealing with the Investigating Officer (“IO”), from the perspective of the complainant. Failing to avoid these mistakes would result in your case not receiving the level of attention it deserves or the IO ignoring you in favour of more pressing cases (or just giving more attention to other complainants who press him more than you do). In a worst case scenario, a meritorious complaint can result in an order of NFA – No Further Action and the case is closed. This can in some situations expose you to a civil suit from the suspect, on the basis of false report, malicious prosecution and defamation, among others, depending on the factual pattern. Most complainants approached their case with great difficulty and even with risk to themselves and their reputation. Therefore it is important to make the complaint count with follow through.
Remember: A complainant cannot force the police to “charge” a suspect. This is because the power to file criminal charges rests solely with the Public Prosecutor and such power cannot be reviewed or challenged in court.
1. Failing to follow up with your case.
a. This is the most common mistake, because the complainants assumed that once they lodged a report, the police would do all things necessary to investigate the case and bring the perpetrators to justice. While we have every reason to expect that police officers will investigate the case to completion, there is almost nothing to compel the police to investigate within a certain time frame, within certain standards of quality, nor even any objective standard of commitment. Understandably, the volume of cases and the multitude of fact patters makes it difficult to fairly and objectively fix a universal KPI for criminal investigations. There are very few exceptions, for example, cases investigated under anti-money laundering legislation, that contains any prescribed time frame for performing certain investigative actions.
b. In its wisdom, Parliament has inserted Section 107A of the Criminal Procedure Code that sets out the procedure and avenue for complainants to follow up with their police reports. No longer are complainants at the mercy of the IO who can take his or her own sweet time to investigate a case. Citizens are becoming more aware of their rights.
c. By following the steps in Section 107A, you would be ensured to receive a written update on the development of the investigation. You will not receive a detailed report, but at least you will receive a written update on the police letterhead that the case is being looked into. We have seen such response by e-mail and hardcopy — you should not accept an informal WhatsApp or text — if you do, ask them or their boss whether there is a response.
d. The IO is obliged to prepare a “Laporan Keputusan Kes” which sets out briefly the outcome of an investigation. Some time ago, all such letters were personalized, addressed to the complainant and served by hand. In recent years however, we have seen that such letters are not personalized as they were before. At the end of 2019, we were approached by a man who lodged a missing persons report for his wife who disappeared in 2016. His IO gave him a Laporan Keputusan Kes in the format of a checklist where the wrong item was ticked! This wrong tick remained uncorrected for 3 years. That showed how sloppy some officers (or some Police Districts) can get. That being said, many letters we received on behalf of or from our clients are personalized. It depends on the boss of the officer in charge and the culture he inculcates in the office. We are not aware whether a standard format is formally implemented throughout the entire police force, but so far it is not uniform, showing a variance in information provided and level of detail.
2. Failing to feed the IO with relevant information and evidence.
a. The IO knows what information he needs to build his case. On his 24 hour shift, an investigator in a busy district could filter through a hundred or more reports, selecting only the most clear and pressing for action, so he needs to be selective and economical with his time, or else he would not get anything done in the office and work would pile up.
b. Clarity is the key here. When you make your report and when you provide information to the police (whether recorded into a S. 112 statement or not), be clear and concise as possible. Please resist the urge to vent your emotional back story to the IO, unless asked. If your complaint is vague or wishy washy, the IO may think there is nothing to investigate. One of our clients received a letter from the IO that stated that the case was NFA’d — there was a column of boxes and the box ticked was because “tiada keterangan” which was unexpected considering what was actually provided. The IO may be turned off if your complaint is vague and may rapidly (although incorrectly) conclude that there is no case.
c. Many investigators are experienced and well trained; they know exactly how to zoom into the facts of a case to ask you the right questions to build an actionable case. However, do not take this for granted ; always come to a meeting with the IO prepared with any documents, photos or other relevant paraphernalia that you can hand over on the spot, to prevent waste of a trip home or a wasted day or wasted week. Let the IO decide whether they need any of the items. Make sure you have your own copy. If you had handed original documents to the IO, make sure you receive an acknowledgment of receipt. You may not see them again until the case is over. There are procedures for requesting release of documents and items in the course of an ongoing case. One thing you can do is to provide copies only. Only hand over the originals if the IO asks for it. I have had clients complain that the items the IO returned were damaged — expensive hardware that were just left on a bare cement floor with no protective insulation whatsoever. So for non-documentary exhibits, perhaps you should photograph them beforehand as reference.
3. Dealing with the wrong officer or the wrong channel.
a. In an investigation, the contact person for a complainant, witness and suspect is the IO. The IO is in custody of and is accountable for the movement of the IP.
b. The next important person is the IO’s immediate boss. This immediate boss is called a Ketua Bahagian Siasatan, depending on the agency. The police and all other enforcement agencies operate in an hierarchy where IOs report to and are supervised by their superiors. Sometimes for complex or heavy cases, several IOs are overseen by an SIO, who is not the boss but who has some authority within that department. Sometimes, the Ketua Bahagian Siasatan delegates some decision making authority to the SIO.
c. The default person who is in charge of the IP is the IO but sometimes other officers like the SIO or even their boss, the Ketua Bahagian Siasatan is personally in charge of an IP. Although in the office they are designated the boss or SIO, in law they are just IO. Sometimes this is due to legal or procedural practice, for example, the IO for murder cases is at least of ASP rank. Some special security offence investigations should have a Superintendant on board as a supervising officer because in law, only a Superintendant of Police can activate certain powers under the law. We were informed that as of this writing, the OCPD of IPD Besut is of Inspector rank. We are not sure who would then investigate a murder IP.
d. In the course of an investigation, complainants, witnesses and suspects would be interacting with many police officers. But there would only be one IO. Sometimes other officers ask questions. Laymen are not in the position to question rank and authority. Just cooperate with the police and do your best to keep track what information you provided and to whom. This is probably quite challenging to do, but there are advantages to this so that you can “control” what information you know for sure are in possession of the police, at least the information from you. An experienced criminal lawyer can advise you on how this could pan out in court in respect of an Alcontara notice and afterthought.
e. Sometimes police officers from different divisions interview you. They could even be from the Special Branch. What they record are not S. 112 statements and (for the most part) do not end up in an investigation paper. That means, for your purposes, these gentlemen are not relevant to the process that ends up on the DPP’s table. Sometimes they record intelligence statements or other statements for intelligence gathering in anti-syndicate actions; even policy research. So put your heart into what you tell the IO to make sure he writes every relevant detail down, and re-read the statement.
4. Treating the IO like your buddy.
a. The IO is a civil servant and has statutory duties. The IO is not obliged to give you legal advice, counselling, make you feel good or responsible, to guide you whether you should sue someone, to provide personal protection to you or be your bodyguard. The IO cannot be used as a middleman to settle a case between you and a suspect. It is just not his job. The IO also does not refer you to lawyers, touts, moneylenders, bailors or helps you court-shopping or prosecutor-shopping.
b. Be wary if the IO conveys a message from the other side (victim versus perpetrator) or even a third party, that the case can be settled in a particular manner. Again, this is not the IO’s job and it could be seen as an interference in the course of justice. But be mindful and sensitive to any opportunities to actually resolve your problem – some may be resolved to your satisfaction without resorting to the harsh, punitive and irreversible criminal procedure. You should get legal advice so that you do not take the wrong step into something unlawful.
c. The IO may say and do things that may make you want to trust him or rely on him or even expect things out of him. Please avoid any such self-delusion. The IO is a professional officer out there for a professional job. You are, like an IP, evidence, law, proof, are just one element out of many elements in his job. An IO knows that by ensuring your compliance and cooperation, he can settle a case as quickly as possible. That is what he wants out of you.
d. An IO is not supposed to recommend a lawyer to you. Whether you are a complainant, witness or suspect. But especially if you are a suspect. Just do not accept a lawyer recommended by an IO because you would not know for sure whose interest they are protecting. You may think that by appointing a lawyer recommended by the IO, that you would be making the IO happy or that the IO would more likely be cooperative to a lawyer recommended by him instead of a lawyer you sought out on merit. You might also think that by pleasing the IO, and appointing his lawyer friend, you could obtain a favourable outcome in the case. This is likely a stupid assumption and should be dismissed. Forget it.
e. Remember, the decision to charge or not to charge, is not with the IO but with the DPP. IOs often say they are going to charge someone, or that they will decide on the fate of someone – it is easy to be impressed by their commanding language arising from their power and uniform. As citizens and common folk, we should just oblige and cooperate in the spirit of good citizenship. However do not be cowed because you have your rights under the law. The IO is also duty bound to serve his master, who is ultimately the law which protects your rights. Because the law is not an actual human being, it is also easy to think that the IO himself is the law, when actually he is not and he could even be the lowest rung in the chain of command. The way many IOs (not all, I have met many excellent and dedicated investigators) handle their cases is they function not as investigators but merely as compilers.
f. During the investigation stage, IOs are very powerful because they control the flow and representation of information. Due to their control of the information, they leave the victim and the perpetrator as well as their respective families, waiting and waiting. We know that some IOs intentionally delay releasing information for their own tactical reasons. These are power play games by some IOs, done for various reasons – to manage the complainant, to manage their immediate bosses, to manage the media, to manage the DPP, to manage the perpetrators. In all fairness, a responsible IO has quite a lot of burden on his shoulder as all eyes are on him. For that reason, generally, generally, you should cooperate with an IO even if you do not think highly of the quality of his work. Remember, he is not your buddy or your friend. He is law enforcement personnel, so help him to help yourself.
5. Failing to put things in writing. This goes without saying.
A word about making reports to Non-Police Enforcement Agencies
W.H. Robinson (1908?) Shakespeare's comedy of Twelfth night; or, What you will, New York: Hodder & Stoughton uploaded to Internet Archives https://archive.org/details/rescomeshakespea00shakrich/page/n183/mode/2up
Some of the more corporatised agencies have dedicated complaints mechanisms unlike the police. That means that when you go to SPRM or SC, there is a process flow to take your case which differs slightly (at the early stage) from a police case. Generally SC takes reports or complaints or information from many sources, for example referrals from line departments, investor affairs, Bursa Malaysia, and even from their highly capable market surveillance team (good, smart people). They may be referred cases by the police. Not all complaints automatically become an IP (Investigation Paper) — they may not even become and EP (Enquiry Paper). You may come to the SC with high expectations of dramatic arrests and big headlines the next day — this may not happen.
For the SPRM, they are used to receiving all kinds of complaints and allegations from all manner of humankind from the saintly to those deep in crime. They would refer you to an officer who can talk down to you and tell you that you have no case, and then not process your complaint. Do not be demoralised. You can still regroup and try again with the right tools and timing. Here are some possible reason why specialist agencies like SPRM do not entertain your complaint:
(i) The offence alleged is not within their jurisdiction or sphere of concern. They may ask you to lodge a report with the police station and let the police deal with it.
(ii) The offence alleged has not yet happened, is premature, or lacks grounding.
(iii) You have come to the SPRM with only “air liur” lacking any independent evidence, is too “outlandish”.
(iv) Looks like you have a problem that is best resolved via some other mechanism, for example mediation, industrial court, civil court, or lodging a report with the relevant disciplinary body.
If you think that your enforcement agency is not giving your complaint the time of day, do not give up. You need to be persistent and escalate your complaint to the right people using the proper channels. At this time, some relatives or friends may say they have an uncle or second cousin or neighbour who has post in such agency and can help things along or monitor the progress of your complaint. I am unable to comment on this but I get this a lot — the results are mixed and you might as well rely on what the law provides and the official communications received from the agency.