Short Notes for Law Students taking Malaysian Criminal Procedure
(If you want the original document, please contact me at mahyuddindaud86@yahoo.com. I will provide the (.doc) document for your reference.
Preliminaries (before trial commence)
There may be preliminary objections / applications as to trial / jurisdiction / defects in charge / no locus standi / impartiality of judicial officer.
Impartiality of judicial officer:
S439: any magistrate must preclude himself from trying a case where he has personal interest in it.
Case: Mohd Ghazali Ibrahim - accused was the presiding magistrate's brother. Magistrate discharged him. High court set aside the order and ordered a retrial before another magistrate.
Mohamed Ezam: The test to be applied in deciding whether a judge should excuse himself from hearing a case is ?real danger of bias' test.
Preliminary applications:
Application to transfer cases to another court - Raymond Chia
Accused appear before the court s173 (a) CPC
?Appearance' means the accused is either out on bail or being summoned and appears before the court on his own wish.
?Brought to the court' means accused has to be brought from custody.
Language used by interpreter
Case: Fong Hung Sium- chief clerk of High Court was asked to interpret from Hokkien to Hainanese. Accused did not fully understand Hainanese dialect & chief clerk did not swear in for his solemn duty.
Spenser-Wilkinsin J said: Duty of interpreter is not only to make sure he & accused understand one another, but to inform the court if there is any difference of language which may cause difficulty.
When charge is read & explained
If accused is facing several charges, each charge must be read & explained separately. Then, plea must be recorded separately as well.
Does the judge need to explain consequences of pleading guilty (PG?)
3 views:
a) If charge is difficult or technical in nature, magistrate need to explain the consequences of PG. (as held in Koh Mui Keow, Low Hiong Boon)
b) If consequences of PG involves forfeiture of subject matter / vehicle used in commission of crime, magistrate need to explain (as held in Petrus)
c) There is no need to explain the consequences of PG because it is not mandatory for the judge to explain (Suriyadi J in Rogayah Che Man)
Plea must be made by accused's own mouth
It is ideal that accused make plea by his own mouth & not through his counsel (R v. Tan Thian Chai)
In Chin Ban Keat, plea was made by counsel on behalf of accused. But, counsel's authority to do so was not disputed in this case.
If one accused PG & co-accused CT?
See explanation by Azmi J in Yap See Teck:
Court must enquire whether prosecution / defence want to call the accused who PG as witness. If they still want to call him as witness, then sentence must be postponed. If they do not require him as witness, it is in the interest of justice not to postpone the sentence.
If accused PG. s173 (b) CPC
After PG is recorded, PO will tender a brief statement of facts. This practice was recognized in cases such as Palan, Supramaniam & Ismail Ibrahim. According to Augustine Paul JC in Mohammad Hassan, it is to ensure that accused UNCP & intends to admit without qualification.
The court must be satisfied that the plea is completely unreserved, unequivocal and unqualified.
Mohamed Azmi FJ in Leng Chow case said:
"A plea made by accused in person is good in law. But before PG is accepted under s173b, accused must UNCP. PG in absence of a counsel is lawful but bad in law because accused may not be UNCP of offence alleged against him."
Example of cases:
Munandu v PP: Accused stated in his mitigation that he was drunk during commission of crime. He said he mistakenly took the bicycle. High Court quashed a conviction of theft of a bicycle & ordered retrial.
Cheah: accused plea was not completely unreserved and unqualified.
PP v Yusoff: accused convicted of possession of keris. Accused explained that the keris was borrowed by his friend during a bersanding ceremony & just being returned to him on the night in question.
If the validity of PG is doubtful, magistrate should reject such PG & order the case to proceed to trial. If the case had gone to appeal, appellate court should quash the conviction with or without remitting the case for retrial.
Abdul Mormin's case: discretion to reject PG must be exercised judicially.
Ong Hock Sim J: If PG has been made before facts given, it is usual practice to allow PG to be withdrawn.
If accused CT. S.173 (c) CPC
S173 (c): If the accused CT, court shall proceed to take all such evidence as may be produced in support of the prosecution.
The choice or order of persons to be called as prosecution witnesses is at the discretion of PO to call or not to call (decided by COA in Khoon Chye Hin)
Augustine Paul J in PP v Dato Seri Anwar Ibrahim agreed with Khoon Chye Hine: Court should not invoke adverse presumption against PO under illustration (g) s114 EA over the non-calling of certain witnesses including Prime Minister. His evidence showed that their role in the case was minimal.
However, there are limits to which PO can hide behind the said discretion. Non-calling of witnesses should not create doubts to the case. In Abdullah Zawawi, non-calling of assistant manager & office boy gave rise to doubts to the exact identity of the offender. PO must remove these doubts.
When witnesses are called, each of them will be subjected to 3 stages of examination s173 (e) CPC. But if witnesses are hostile, PO can initiate impeachment proceedings against them (proceeding to disregard the witness).
But, in DP Vijandran, COA said that impeachment proceedings are slow & should not be used unless there is a real need to do so.
Closing of PP's case.
When PO is done calling witnesses, PO will inform that the prosecution is closing its case. It is a practice of PO to offer to the defence, witnesses whom statement have been recorded but not been called as witnesses. This is to avoid adverse presumption under Illustration (g) to S114 EA.
However, adverse presumption cannot be drawn merely because of failure of defense counsel to obtain evidence.
Adverse presumption can only be drawn if there is withholding or suppression of evidence. (Munusamy v PP)
Submission of no case to answer.
Normally done by defence counsel to persuade the court not to call on accused to enter defense.
Seah J in Ong Khoon Seng case said:
1) There is no express provision in CPC permitting defence counsel to make submission of no case to answer at close of PO's case.
2) But the practice in this country has always been to allow defence counsel to make such submission.
In PP v H Parnaby, the judge refused to hear a submission of no case to answer by defence counsel because the evidence given by PO was overwhelming. It is the discretion of judge to allow submission of no case & not a matter of right.
Decision to order acquittal or call accused to enter defence s173 (f) CPC
The court would have to decide whether there is a case to call on the accused to enter his defense (Junaidi Abdullah). It depends whether the prosecution satisfied the standard of proof required.
In PP v Chin Yoke (1940), it was held that PP must establish their case beyond reasonable doubt which requires maximum evaluation of evidence involving assessment of:
a) Credibility & accuracy of witnesses
b) Credibility & accuracy of evidence.
However in Haw Tua Tau v PP (1981), Lord Diplock loosens the standard of proof which requires minimum evaluation. "It involves a hypothetical question of law that would establish elements of offence where:
The court must act on presumptions
a) That all such evidence of primary fact is true, unless it is so inherently incredible that no reasonable person would accept it as being true
b) There will be nothing to displace those primary facts.
Whoever has the function of deciding facts should keep an open mind about veracity & accuracy of recollection of any individual witness." - Per Lord Diplock.
This new interpretation caused problem in cases such as Munusamy & Junaidi Abdullah.
Later, Supreme Court in the case of Khoo Hi Chiang decided that the correct test to be applied was of proof beyond reasonable doubt test (maximum standard).
The Federal Court in Arulpragasan case (1997) finally decided that the standard of proof required is beyond reasonable doubt which calls for maximum evaluation of evidence.
Now, the position is set out in the newly amended s173 (f) (prima facie test) & s173 (m) (proof beyond reasonable doubt test).
Augustine Paul J in Datuk Seri Anwar's case said that:
"A prima facie case arises when the evidence in favour of a party is sufficiently strong which opposing party must answer. If taken in totality, the evidence if unrebutted, is sufficient to induce the court to believe that the facts stated in the charge did happen."
Gopal Sri Ram JCA in Looi Kow Chai (2003) confirmed the decision in Datuk Seri Anwar. However, there is no burden on PP to prove its case beyond reasonable doubt at the close of PP's case. PP needs to do so at the close of the whole case.
In Balachandran v PP (2005), Augustine Paul JCA restated the law. At the end of PP's case, PP only needs to prove prima facie (PF) case (s180 CPC). To prove PF, the test is:
"Whether the evidence is sufficient to convict the accused if he chose to remain silent?"
If the answer to the above is yes, then we see whether there is any reasonable doubt (RD). If no RD, then it is a PF case. If it has RD, it is not a PF case.
?Evidence' here if unrebutted, is sufficient to warrant a conviction. (This is PF evidence. PF evidence which is capable of supporting a conviction will constitute proof beyond RD).
However, it must be observed that it cannot at this stage (at the close of PP's case), proved the case to be beyond RD. Proof beyond RD needs:
a) PP to discharge its legal burden
b) Accused to raise RD.
This can only be done at the close of DC's case.
When Court calls the accused to enter his defence, 3 options for the Accused given by the Court s173 (h) (a):
1) to give sworn evidence in witness box (effect: liable to be cross-examined)
2) to give unsworn statement from dock (effect: no right to cross-examine because it does not constitute evidence (Ip Ying Wah, Wong Heng Fatt)
3) to remain silent (effect : no right to cross-examine because it does not constitute evidence)
~refer section 173(ha) CPC
Decision whether to convict or acquit s173 (m)
Suffian J in Mat v PP outlined the steps for magistrates to observe:
When the court convicts, accused can plea in mitigation
~refer S173A CPC
If conviction made under s173A, there will be no recording of conviction.
Sentencing s173 (m) & s173 (b)
S173 (m) stated that the court ?shall pass sentence according to law'. Azmi J in PP v Jafa Daud examined this phrase:
Main factors to be considered before sentencing are:
1) if A is main offender
2) if A has previous records and A admits the records as correct
3) if offences committed previously were of similar nature as the present offence
4) whether the sentences imposed previously had any deterrent effect on A
5) If A is a persistent offender
In PP v Jafa Daud, A had numerous previous convictions. So magistrate should not found the quantity of 0.21g heroin as a mitigating factor. High Court extended imprisonment.
Discharge
2 types:
i) Discharge not amounting to acquittal DNAA (effect: it is not a final order and PP can still re-arrested
ii) Acquittal (effect: it would bar PP from prosecuting on the same facts)
There are 4 grounds for magistrate to order a discharge:
1) When the charge is groundless s173g
Chu Chee Peng v PP: magistrate should stop the profitless hearing if it is clear that he will announce verdict of acquittal.
PP v Tan Kim San: Police took a year to conduct investigation and yet 8 months later, investigation still incomplete. Although investigation incomplete, PP had charged accused. PP wanted to ask for postponement on the ground that investigation was incomplete. Court refused and held that the charge was groundless. (This case was distinguished by Augustine Paul J in the case below)
Dato' Seri Anwar Ibrahim case: Investigation took a long time because it was hard to get blood sample from accused. PP charged accused after investigation completed. Thus, police was justified in the delay in investigation & charge was not groundless. In this case, Augustine Paul said:
"The court is not concerned with when and how the evidence was obtained."
If material witnesses are not available, the Court should consider granting postponement under s259 (i) CPC rather than discharging the person.
2) When accused behaved good s173A (ii) (b)
~refer s173A (ii) (b)
3) When PP informs the court that PP will not prosecute accused.
~refer s254 CPC
4) Where there are defects which affect the jurisdiction of Court
Defects may be in form of invalid consent or unfulfillment of certain requirements.
Continuation of part-heard case or de novo (start all over again) S 261 CPC
The succeeding magistrate to act on the evidence recorded by his predecessor, or partly recorded by his predecessor and partly recorded by him.
The purpose of s 261 is to avoid from unnecessary re-trial. It will waste courts time, lengthen the trial and cause injustice.
Can a Magistrate who is now transferred to be DPP, continue to hear his part-heard cases?
Mohamed Anuardin: he should be allowed to return and continue with the part-heard cases
Oh Keng Seng: this case was decided in conflict with Anuardin case. It was held that when Sessions court judge appointed as DPP, he does not have power to act as judge. So he cannot continue the part-heard case.
Oh Keng Seng contradicted the earlier decision of PP v Kulasingam. In Kulasingam, as long as there is no miscarriage of justice or contravention of natural justice, he can continue hearing the part-heard case.
PP v Goh Chooi Guan states 3 conditions that disqualify him from hearing part-heard cases:
a) Death
b) Retirement
c) Resignation
Holding of view / locus in quo
Decided cases such as Lee Ah Phua and Harban Singh confirmed that magistrate can visit the scene of the crime.
However, 2 things must be born in mind:
1) View must be in respect of permanent structures or features;
-view should only take place after hearing begun
-scope of view must be limited to an examination of the place
2) All parties concerned must be present
Tendering reports of certain persons s399
S399 CPC: reports of certain person are allowed to be tendered without calling its maker as witness. PP need to serve a copy of that report to accused not less than 10 clear days before the commencement of trial.
PP v Tay Tuan: trial will only commence from the actual hearing itself, i.e. where any part of the evidence has been heard
Tan Lay Chen: When accused plead guilty, there is no need to comply with s399. The report may be tendered as part of brief facts.
Saw Thean Teik: it is wrong for a witness to produce a report as a substitute for oral evidence. But, such report can be used to refresh his memory or as corroboration of his oral testimony pursuant to s157 EA.
Defence of alibi s402A CPC
S402A: to adduce defence of alibi, accused must adduce evidence in support of defence of alibi at least 10 days pre-trial notice to PP
This is to enable PP to check the authenticity of such defence.
Vasan Singh case differentiated bare denial and alibi:
Bare denial
Alibi
Applicant said that he was not involved in fight & was in bed (without substantiating his statement with any evidence)
Before saying that, he gave 10 days pre-trial notice to PP & adduces evidence in support of alibi. After that, he makes that statement.
If the court thinks that the evidence is bare denial, then court should accept the evidence.
But, if evidence in support of alibi was not served to PP 10 days before trial (no pre-trial notice, then evidence must be taken out.
If complied with the procedure (10 days), then evidence in support of alibi can be accepted. If not complied, then court shall not accept.
Does Cautioned Statement constitute a valid notice of alibi under s402A CPC?
Hussin Sillit: No. actual notice containing particulars of alibi must be given to PP within 10 days.
Wong Kim Leng: If PP added new charges to the extent that the appellant was deprived to give the alibi notice, then this is unfair to the appellant.
Amendment of charges
Power to amend charges is part of PP's broad discretion
Art 145 (3) FC; s 376 CPC; s173 (h) CPC; s158 CPC
After amend charges, must comply with the usual process (accused must UNCP & others)
Refreshing of memory
S 159 & 160 EA: Refreshing of memory of witness whilst under examination is permitted, provided the documents used for refreshing are made contemporaneously with the events to be deposed to.
Questioning by Court
In adversarial system, normally parties will question the witness and the judge will leave the questioning to the counsels.
But, s 256 CPC allows Court to question the accused for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him.
If Court asks too much, which had subjected the accused to serious cross examination, does it prevent a fair trial?
Raja Azlan Shah J in Gan Kok Liong said that if the purpose is to ascertain the truth and to do justice, then the Judge is justified to ask questions.
Lim Chin Poh v PP: If accused represented by counsels, judge should refrain from intervening, unless it is necessary.
Teng Boon How: the judge had played the role of PP & cross examined the accused. His judgment was made based on his findings in that cross examination. Supreme Court held that the judge had fallen into error because:
1) He entered into the arena of dispute
2) He allowed his judgment to be clouded by results of his cross examination.
Habeas Corpus
Autrefois acquit autrefois convict (AAAC)
Art 7(2) FC: Double jeopardy
S302 CPC
If accused has been tried by a court of competent jurisdiction for an offence and was convicted or acquitted of such offence, PP cannot recharge & retry again on the same facts (also held in Jamali Adnan)
What does ?court of competent jurisdiction' means?
Sau Soo Kim: The court should be competent to determine the case and record a conviction or acquittal
In Sau Soo Kim, magistrate was wrong in acquitting the respondent because magistrate was not competent to hear that case. That case should be transferred to High Court without the need for preliminary inquiry.
What does ?same offense' means?
S166 & 167 CPC
Jagjit Singh: A person who has been acquitted for an offence years ago and is presently charged with a similar offence involving different facts, cannot plead AAAC
Lye Pong Fong: AAAC does not apply if a person is subjected to detention orders (ISA) without undergoing trial.
Lee Chan Sang: An order of discharge (DNAA) does not bar the PP from making a fresh charge based on same facts.
Sentencing
a) Death sentence
Karpal Singh in the case of Lau Kee Hoo raised an issue that death sentence is unconstitutional because it violates Art 5 FC (right to life). However, the court ruled that death sentence is constitutional.
"The Constitution itself envisages the possibility of Parliament providing for the death penalty, as Article 5(1) provides for deprivation of life according to the law. The ISA is legislation against subversion expressly authorised by Article 149 and therefore any provision under that is valid even if it is inconsistent with Article 5."
However, there exist 2 exceptions whereby convicted accused may not yet be sentenced to death:
a) Convicted accused alleged to be pregnant (S275 CPC)
b) Accused was below 18 years old but attained 10 years old (juvenile)
b) Imprisonment
Imprisonment for life / until death has also been challenged on the issue of its constitutionality. However, it has been held in Che Ani that the sentence is constitutional.
S 282 (d) CPC: The effective date for sentencing is purely discretionary. Have to look at facts of each case. It is a discretion of a judge whether to back-date the effective date of sentencing. (Chua Chuan Heng Allan)
In Dato Seri Anwar Ibrahim (2002), the reason for the judge not to backdate the imprisonment sentence was because the accused had 10 charges. Accused was also remanded in respect of other charges. So the judge considered that backdating the sentence from the date of arrest is inappropriate.
Does the phrase ?shall be liable to' & ?shall be punished' differ?
Shall be liable
(Jayanathan)
Shall be punished
(Man b. Ismail)
Judge have options & be given discretion under s294 CPC to choose other sentences prescribed by the statute.
e.g. if the statute provides "Shall be liable to imprisonment, or to fine."
So judge can exercise discretion to opt between these 2 to suit the circumstances of each case
Judge does not have option to choose other sentence. If imprisonment is prescribed by statute, judge has to sentence imprisonment.
If accused committed more than 1 offence in 1 transaction, should he be punished concurrently or consecutively?
There are 2 views:
1) One-transaction principle
Where 2 or more offences committed in a single transaction, all sentences in respect of these offences should be concurrent.
However, before one-transaction principle applies, 4 requirements have to be satisfied (Jayaraman's case):
a) Proximity of time
b) Proximity of place
c) Continuity of action
d) Continuity of purpose
2) Totality principle
First, court would have to decide on the appropriate sentence for each of the several offences. Then, court will look at the aggregate and decide, whether in totality, the aggregate is excessive. If excessive, the sentences will run concurrently to reduce its excessiveness.
In Sau Soo Kim, the excessive aggregate was reduced to 14 years.
c) Whipping
Refer to s288, 289 CPC
d) Fines, compensation or costs
refer s 283 & s426
e) Police supervision
s 295, 296 CPC
f) Good behavior bond
s 173A, 293 (i)(b) and 294
Final Year Law Student, International Islamic University Malaysia
Article Source: ArticlesBase.com
