Topic 1

Introduction

Lim Hung Wang v PP

In Malaysia, criminal procedure law is governed by the CPC which controls the
entire process of criminal procedure from the beginning (the commission of the
offence) to the conclusion of the judgement in a case.

Objective
Goh Keat Peng v PP
It is to be noted that the relevant provisions of the CPC have been enacted with the
primary purpose of ensuring proper conduct of the prosecution of an offence and
to prevent injustice meted out on any party.

Reaffirmed by Sukma Darmawan Sasmitaat Madja v PP

Fong Yong Fong v R

Criminal procedural laws were designed to ensure that the issues to be determined are
fairly and clearly stated, so that the accused in a criminal case knows the case that he
has to meet and is not placed in a position of embarrassment.

Liaw Kwai Wah & Anor v PP

Revisionary powers conferred by the CPC exist to correct a miscarriage of
justice

The amendments
1.
⚫ CPC of the FMS
⚫ CPC of the SS
⚫ CPC of Sabah
⚫ CPC of Sarawak

2.extended to the whole M’sia in 1976 by CPC (Amendment and

Extension) Act 1976 (Act A324) (10/1/1976)

3.However, it was repealed the other CPCs

4. CPC of the FMS was revised in 1999 (4/4/1999)

 Mandatory
provisions of the CPC are mandatory

Secretary of State Defence v Warm

The presumption is that criminal procedural laws are mandatory until proven
otherwise.

In some circumstances, it is merely directory – where the word “may” is used.

If decide wrong and the provision is actually mandatory rather than directory, it is
considered irregular - curable under s.422 CPC (irregularities not to vitiate
proceedings) if it does not cause failure of justice. (if thought that the provision is
directory=irregularity)

Kamarul Azman v Lef. Colonel Wan Abdul Majid ,Failure to observe

such a mandatory provision is undoubtedly a serious matter

Mersing Omnibus v Ministry of Manpower,Procedural sections are usually

mandatory and there is nothing which points to the contrary in this case. In the matter
before us the terms of O. 53 r. 1 and 1A clearly reflect the imperative requirements
which must be complied with before an application for certiorari can be made

Bunya Jalong v PP
effect of non-compliance is considered illegality. The trial was in breach of s.163 and
not saved by s.164 or s.165 of the CPC. It constituted an illegality which cannot be
cured under s.422.

However, there are circumstances where the provisions is regarded as a mere

directory/guide.

Mere irregularity will not vitiate the proceedings.

Curable under S.422 if does not cause failure of justice.

Rosarin Nuekaew v PP
In this case, under S.402B CPC ,statement admitted in evidence shall be read aloud at
the trial, unless the court directs otherwise.Courts could depend on this provision at its
discretion, when it considered it appropriate and with the concurrence of all parties,
with the requirement that the witness statement must be read aloud.This is to avoid
unnecessarily lengthy readings of such statements in court so as to not defeat the
purpose for the insertion of s.402B (to provide a speedy disposal of criminal cases)

Hence, the requirement under s.402B is only directory, not mandatory.

Hee Nyuk Fook v PP

The word “shall” not necessarily to be taken as mandatory in every case. No hard and
fast rule can be laid down because it depends on the facts and circumstances of each
case.
 Why code? Not act?

indicates the intention of the legislature of this statute to be exhaustive(covers

all/complete).

Karpal Singh v PP ,The CPC is intended to be exhaustive only for matters to which
they relate.

No lacuna under normal circumstances.

Inherent power of court to override express provisions cannot be invoked when

there is a remedy already provided by the legislature in the CPC.

This limits the scope of the court’s actions and it cannot act outside of those powers.
Only in the absence of any other written law (CPC, Penal Code, other acts) can the
court refer to other sources of law.

Tan Boon Hock v PP

Where there is lacuna in the CPC, courts may look to English law on the matter.

Hari Ram Senghal v PP

English Criminal Procedure may be important as long as it does not contradict the
Malaysian CPC

Schedules
Schedule 1 (1) PC Sections; (2) Offence;
(3)Seizable/not;(4)Summon/Warrant;(5)Bailable/not;
(6) Compundable/not; (7) Max Punishment

Schedule 2 Form 1-55

Schedule 3 Modification of chapter XXXIII for sabah
sarawak(deleted)
Schedule 4 Body search procudure
 Marginal Notes

Marginal Notes
An aid for easy reference and brief guide to the content of the section

Example:
Trial of offences under Penal Code and otherlaws
3. All offences under the Penal Code shall be…
Saving of powers of High Court
5. Nothing in this Code shall be construed

It is treated as part of the Act and may be referred to for assistance in interpreting the
statute

Re Tan Keng Tin [1932] MLJ 134, Terrell J held

“…as in the Colony, the marginal notes are treated as part of an Ordinance and are
discussed and even amended in Committee, there would appear to be no reason why
they should not be referred to assist the interpretation of the section”.

KoK Wah Kuan [2007] 4 CLJ 454, COA “…marginal notes are admissible guides to
statutory interpretation. Indeed: It is now well settled that a marginal note is a part of
the section. It is the key to open the mind of the legislature by affording guidance in
understanding their intendment. See, The Film Exhibitors Guild v State AIR [1987]
AP 110, per K Ramaswamy J on behalf of the Full Bench.”

However, since the marginal note only provide a brief guide to the content of the
section, it is not mandatory for the court to follow

Example:
The marginal note on S.294 states –“……………”

Yeong Yin Choy

Marginal notes are not mandatory for the court to follow, merely a brief guide.
In this case, the court referred to the marginal notes in s.294 which states the phrase
“first offender”.

Held: the marginal note was misleading and does not project the true intention of the
section – s.294 was not limited to only first offenders.
 Characteristic of the CPC

⚫ The CPC is intended to be exhaustive(karpal case)

⚫ The CPC overrides the court’s power (karpal case)
Karpal Singh [1991] 1 CLJ Rep 183 “The inherent power apparently cannot be
invoked to override an express provision of law or when there is another remedy
available. Where the Legislature has provided a particular mode of action or has
vested an authority with powers to act in a particular manner and has prescribed the
conditions limiting the scope of such action, the Court cannot act outside those
powers and conditions.

⚫ The CPC cannot override the Courts of Judicature Act (CJA)

CPC cannot overrides CJA

In the event of inconsistency or conflict between this Act and any other written law
(e.g. CPC) other than the Constitution in force at the commencement of this Act, the
provisions of this Act shall prevail.

S.4 CJA – where there are inconsistencies with other written laws, the CJA will
prevail (includes the CPC)

Lorraine Phylis Cohen v PP

Having regard to s 52(1) of the Courts of Judicature Act 1964, since there was already
a written judgment, signed and delivered earlier, no second written judgment or
grounds of decision could be delivered subsequently by the trial judge to supplement
the first judgment. It is wrong in principle to allow a judge to supplement his original
written judgment by a second judgment; s 278 of the Criminal Procedure Code (FMS
Cap 6) does not confer jurisdiction on a judge to deliver a second judgment to
supplement a first judgment. In any event, s 278 cannot override any provision of
the Courts of Judicature Act 1964.

CPC must be applied first – if there are no definitions for a certain word/phrase, refer
to the Penal Code/Police Act/DDA/other statutes. Only when there is really none then
can refer to other sources of law.

Abdul Ghani bin Jusoh v PP

The Federal Court erred by straightaway referring to the Police Act rather than
applying the CPC first
 Seizable and non Seizable

For Penal Code offences, refer to the First Schedule of the CPC.
For non-PC offences, refer to the specific statute.

If both are silent, refer to the last part of the First Schedule of the CPC for
“offences against laws other than the Penal Code.”

Seizable offences – can arrest without a warrant (don’t need warrant)

Non-seizable offences – cannot arrest without a warrant (need warrant)

Approach in Interpretation of provisions in CPC

S.2(3)
All words & expressions used herein [CPC] and defined in the PC/Police Act 1967
(PA), and not herein before defined [by CPC] shall be deemed to have the meanings
attributed to them by that Code [PC]/that Act [PA], as the case may be.

Definition must come from CPC first than PC/PA

Abdul Ghani bin Jusoh v PP

The Federal Court erred by straightaway referring to the Police Act rather than
applying the CPC first

Karpal singh case

Ssection 3
general rule: all offences under the CPC and other statutes must be tried according to
the CPC

Trial of offences under Penal Code and otherlaws

S3,All offences under the PC shall be inquired into and tried according to the
provisions hereinafter contained (CPC), and all offences under any other law shall be
inquired into and tried according to the same provisions (CPC) subject however to
any written law for the time being in force regulating the manner/place of inquiring
into/trying such offences.

Lim Hung Wang v PP

Exception: if the specific statute lays down a specific procedure which differs from
the CPC, the provision in that statute will prevail.

“generalia specialibus non derogant” maxim

PP v Chew Sew Luan
DDA ,in the matter of bail, the DDA has its own provision regarding offences under
it, hence those provisions will apply.

Statues with Procedural:

Sedition Act1948
Dangerous Drugs Act1952 (DDA)
Customs Act 1967
Firearms Increased Penalties Act1971 (FIPA)
Official Secrets Act 1972
Security Offences Special Measure Act 2012 (SOSMA)

If statue is silent=Apply CPC

Chu Beow Hin v PP

In the absence of express provisions in the Price Control Act, the court can only
exercise the provision of s.407 of the CPC.

PP v Ayar
19 Indonesian fishermen were arrested for illegally fishing in Malaysian territorial
waters under s 15(1)(a) of Fisheries Act 1985. Since the investigation could not be
completed within 24 hours, the respondents were produced by the investigating
officer before the assistant district officer for a further detention of three days under s
47D of the Act.

Issue: Whether the procedure laid down in s 117 of CPC is applicable to offences
under the Act where s 47D of the Act is silent on the procedure to be followed where
investigation cannot be completed within 24 hours.

Held: The applications were made under s 47D of the Act which provides a procedure
where investigation cannot be completed within 24 hours by a fisheries officer.
Section 47D merely provides that where investigation cannobe completed within 24
hours, the fisheries officer may produce the suspect before a magistrate and the
magistrate may authorise his detentionfor a term not exceeding 15 days on the whole.
Section 47D unlike s 117 of the CPC does not stipulate the procedure to be complied
with in applying for a remand order before a magistrate. Section 3 of the CPC lays
down the general rule that all offences under the Penal Code as well as all offences in
statutes other than the Code must be inquired into and tried according to the same
provisions of the CPC. However, if a particular written law, for instance, a statute
which lays down a special procedure of trial or investigation governing offences
committed under that statute, then the statute shall prevail over the CPC. If, on the
other hand, the particular statute which is supposed to regulate the manner of
investigation or trial is silent on the procedure to be followed in an investigation, the
procedure laid down in the CPC shall then be applicable.
 Section 4
saving of powers of the High Court: nothing in this code shall be construed as
derogating the power/jurisdiction of the HC

This clause was meant to assist the court in its interpretation.

Other powers/jurisdiction of the HC which are not stated in the CPC are not affected,
eg:

⚫ The inherent power of court, eg, contempt of court

⚫ HC’s jurisdiction under the CJA, eg, revisionary power

CPC guarantees that its provision does not detract/lessen the powers & jurisdiction of
the HC

Saat Hassan case

This section expressly preserves the inherent jurisdiction of the HC to make any order
necessary to give effect to other provisions under the CPC. Prevents abuse of the
process of any court, secures the needs of justice

S. Selvanathan case
This provision does not reduce/restrict the power of the HC.

Tan Boon Hock v PP

The power of an appellate court to order a retrial on a proper charge before another
magistrate when it is of the opinion that an accused was convicted on a wrong charge
is discretionary. S.4 of the CPC says nothing in the Code shall be construed as
derogating from the powers/jurisdiction of the High Court.

The appellate jurisdiction of the HC is clear. S.4 of the CPC does not lessen the
power/jurisdiction of the HC.

PP v Dato Mat Safuan

In the absence of any provision in the CPC to the contrary, a HC judge may by virtue
of s.4 exercise his discretionary power under the s.35 CJA; as the words “in addition
to the powers conferred to the HC by this or any other written law” refers to other
additional supervisory/revisionary powers contained in the CJA, the CPC and other
written laws.

Hari Ram Senghal v PP

The courts in England have the inherent power to intervene and make rules not stated
in their criminal procedure law in order to correct any injustice. This power to make
rules are an inherent power. By virtue of s.5 of the CPC, this power can extend to
Malaysian courts/judges so long as it does not conflict with any statutory provisions.

Karpal Singh v PP
The court stated that in its opinion, the English doctrine of inherent jurisdiction is
hardly applicable in the subordinate courts. However, the HC may invoke such
powers in rare instances where is it right to do justice to the accused.
The court must be careful that the decision is not in conflict with the intention of the
legislature as indicated in statutory powers, which the courts cannot act outside of.

Section 5
Laws of England, when applicable?
As regards matters of criminal procedure for which

⚫ no special provision has been made by this Code/by any other law for the time
being in force (lacuna)

⚫ the law relating to criminal procedure for the time being in force in England shall
be applied

⚫ so far as the same shall not conflict / be inconsistent with this Code and can be
made auxiliary thereto.

allows reference to law (case law & statutes) relating to criminal procedure for
the time being in force in England.

Karpal Singh v PP
S.5 of the code is indicative of the principles to be applied by local courts.

Sanassi
The accused (in Malaysia) was given the right to make an unsworn statement from the
dock because it was derived from English criminal evidence law under s.5 of the CPC.

When English law is applied

Ong Lai Kim v PP

Issue: whether the identification of a suspect through a one-way mirror was valid. The
CPC and Evidence Act was silent regarding this matter.

Held: courts referred to the procedure in England by virtue of s.5 CPC

Re Kah Wai Video (Ipoh)

Search warrant for the suspect was only for the infringement of copies of films.
However, the police seized other items not stated in the warrant. The court applied the
common law case Chic Fashion v Jones and Ghani v Jones, where it was held that the
police seizure of items not listed in the warrant is justified as long as it is believed to
be stolen. Court held, based on the decisions of these cases, that seizure of non-listed
items was valid as long as they are believed to be related to the case.

Sanassi case
The court allowed the accused to make an unsworn statement from the dock, a rule
derived from the English Criminal Evidence Act read together with s.5 of the CPC.
Dato’ Mokhtar Hashim v PP

The accused was subjected to interrogation for odd and extensive hours in a small
room and the statement made due to the interrogation was questioned.

Court referred to R v Priestly (concept of “oppression” – defined as something that

saps the free will of the interrogated person that existed before the confession is
voluntary. Depends on elements such as length of the questioning, refreshments for
the questioned, character of the questioned, IQ, etc.).

Courts also referred to R v Wilson (held: confessions obtained by overbearing the will
of the person should not be received as evidence).

FC: trial judge was wrong by failing to exclude the statement made by the accused as
a result of prolonged periods of questioning. Hence, the definition of oppression from
R v Priestly was adopted.

Mohd Rafizi Ramli v PP

There was no special provision in Malaysia in regards to quashing a criminal charge
on the basis of the complaints by the appellant.

Hence, it was acceptable for the HC to rely on s.5 CPC and its inherent jurisdiction.

However, the court, in exercising such power, should be slow in doing so to ensure
that it does not conflict with any statutory provisions.

Tan Boon Hock v PP

Where there is lacuna in the CPC, courts may look to English law on the matter.

Husdi v PP
S.5 provides that where is a lacuna in our law relating to criminal procedure, the
courts should apply English law, as long as it does not conflict/contravene any of our
statutory laws.

Karpal Singh v PP
The CPC is intended to be exhaustive. S.5 can only be applied when there is a lacuna
in the law, that is, when there is no specific provision for the matter at hand.

Indian case law

The CPC was modelled after the Indian CPC.
Hence, interpretations in Indian case law for provisions in pari materia
serve as useful
guides.
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Yeap Hock Seng @ Ah Seng v Minister of Home Affairs