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Criminal Procedure CODE Cheat Sheet

CRIMINAL PROCEDURE 1 (Universiti Malaya)

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ARREST(Power is discretionary & not mandatory)
Must be exercised carefully
 R v Inwood: “It all depends on the circumstances of any particular
case whether in fact it has been shown that a man has been arrested,
and the court considers it unwise to say that there should be any
particular formula followed. No formula will suit every case and it may
well be that different procedures might have to be followed with
different persons depending on their age, ethnic origin, knowledge of
English, intellectual qualities, physical or mental disabilities. There is
no magic formula; only the obligation to make it plain to the suspect by
what is said and done that he is no longer a free man.”
Art 5: No person shall be deprived of his life or personal liberty save in
accordance with law.
Who can arrest without warrant: Police/ Mgt/ Penghulu/ Private Person
Writ can be issued by: Session Ct (Registrar)/ Mgt on either class
Without warrant: s23(1) CPC When police or penghulu may arrest
without warrant
How may arrest: s15 CPC there are three modes by which a person may
be arrested, comprising of actual touching or confining the body of the
person sought to be arrested or submission to the custody by word or
action.
Degree: s15 CPC (1) Touch/confine unless there is submission to custody
by word/ action. If resist (2) use all means necessary. (3) Does not give
right to cause death if not punishable with death/ imprisonment for life
 Lim Hock Boon: COA - it is clear from the evidence that the
appellant was under arrest the moment PW8 turned off the engine
and took possession of the keys. That is why the learned judge held
these statements to be inadmissible.
Fed Court - on the facts, it cannot be said that the Resp had been
arrested by PW8 when he blocked the Resp's car and switched off the
engine and took possessions of the keys, for he had stopped him to
make inquiries.
 Lee Cher Joo: Pfs had gone to the Buloh Kasap Police Station at 6.30
pm in response to the requests of the police officer. They were then told
to wait until 9 pm in which they were subsequently arrested and
detained at the lock-up of Segamat Police Station. The court held that
there was no arrest between 6.30 to 9pm as they were asked to wait and
if they were under arrest there was no necessity for the officers to tell
them to do so. The willingness to wait is not equivalent to being put
under arrest and no evidence prevented the Pfs from leaving at any
point of time.
 Shaaban & Ors v Chong Fook Kam: Privy Council - An arrest does
not occur when a police officer stops someone to merely make an
inquiry. Three situations were stated as to what constitutes a valid
arrest:
1) Where a police officer states in terms that he is arresting
2) Police officer uses force to restrain the person sought to be arrested
3) Police officer makes it clear by words or conducts that he will use force
if necessary to prevent the person sought to be arrested from going
where he may want to go.
Reasonable Complaint
S2 CPC definition of complaint
 Tan Kay Teck & Anor: An objective test is to be used to
determine whether a complaint is reasonable or not. The
sub-contractor complained to the police that he was confined by the
contractor in a room to discuss payment for the work done but the
sub-cons refused to accept the lower payment. The contractor was
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CRIMINAL PROCEDURE CODE I CHEAT SHEET BY AMIRAH ISRAFI LEB150097/ UNIVERSITI MALAYA/ 44 TH BATCH
arrested and charged under S347 of the Penal Code for wrongful
confinement to extort money. The contractor was acquitted and
discharged. Then claimed damages for wrongful arrest. Court held that
there was no reasonable complaint on the facts.
Credible information
Information that is reliable or can be believed. Bare assertion without
anything more cannot amount to credible information.
 Hashim bin Saud v Yahya bin Hashim There have been information
given to the police that the accused were involved in electricity
generator and cement mixture theft. The police obtained remand order
for further investigation.The plaintiff brought an action against the
defendants for wrongful detention. The information must be credible
before arrest can be made. In this case, it was credible because the
informant was credible and in the past, he had given credible
information.
Reasonable Suspicion Depends on facts and it is for the court to decide.
 Shaaban & Ors v Choong Fok Kam A piece of wood fell from a
timber lorry hitting a car and killing one of the two men in it. The lorry
did not stop. The two Resps were arrested at 7 am on July 11 and
detained on suspicion that one of them had driven the lorry in a rash
and negligent manner. Their alibi found to be false and they were
further detained. Lawfulness of arrest made by the police officer, there
were two stages of arrest in this case as follows:
1. When the corporal detained the two Resps when he suspected that one
of them had driven the lorry where the timber had fallen off, the
arrest was unlawful because the circumstances were such that there
was no reasonable suspicion.
2. When the defence of alibi was discounted, they were further detained,
the detention and arrest were lawful as there was reasonable
suspicion that one of them had driven the lorry in a rash and
negligent manner.
 Mahmood v Govt of Malaysia the plaintiff sued defendants alleging
that he was negligently shot at and wounded by a police officer at the
Lake Gardens. The defence was that the police officer was doing his
duty as he had screams of help of a woman at about 2.20am and saw
two men running away. The police officer had a reasonable suspicion
that a seizable offence had been committed.The Court held that the
police officer had not exceeded his power under S15(2) of the CPC as
he may use all necessary mean to effect the arrest
 Tan Eng Hoe v AG The App was mistakenly arrested for a cheating
case as he fitted the description of an offender, Seah Eng Tan where
both of them hotel, age, region, attire and bags are similar. Held
reasonable man would have suspected - RS exists
S24 CPC: Police officer/ penghulu- non seizable offence- name or
residence may be ascertained, and he shall, within twenty-four hours of
the arrest, exclusive of the time necessary for the journey, be taken before
the nearest Magistrate unless before that time his true name and residence
are ascertained.
Arrest by Penghulu - S25 CPC
Arrest by private person - S27 CPC
In his view
 PP v Sam Hong Choy: In his view to mean his presence or within his
sight. cover situations that although private person did not actually
witness a non-balaible and seizable offence being committed, but he
was certain that the persons running away or trying to escape were
offenders themselves as he was in such a close proximity to the scene of
the crime. A private person cannot therefore arrest on mere suspicion
or on information received no matter how credible the information is.
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 Metro (Golden Mile) Pte Ltd: Strict view. Commission of offence in
his sight. Then only can be rendered as lawful arrest. Must witness the
commission of the offence!
 Walters v WH Smith (Common Law): It is necessary for a private
person to prove that the same felony had been committed. The offence
had been committed in front of the eyes!
Without unnecessary delay
 John Lewis & Co Ltd: The Resp and her daughter were detained by
two store detectives of a shop until the managing director and the chief
store heard the reports. Then the police were called. Charged for
shoplifting. Court held - no unnecessary delay in handing them over to
the police because they were given the opportunity to answer the
allegation of theft.
Arrest with Warrant
Section 41
Section 42
RIGHTS & REMEDIES FOR ARRESTED PERSON
Possible remedies: Right to private self defence/ habeas corpus/ damages
Rights to be informed on ground of arrest
Art 5(3) FC: Right to be informed on ground of arrest (Read together with
s28A CPC)
 Christie & Anor v Leachinsky provides that if the reason of arrest
was withheld, it would amount to false imprisonment until the ground
of arrest is informed. Police officer don’t need to inform ground of
arrest:
1. If the arrested person knows the general nature of the alleged offence
for which he is arrested.
2. If the person arrested makes it practically impossible to inform him.
Right to legal representative
 Ooi Ah Phua v Officer-in-Charge: 'The right of an arrested person to
consult his lawyer begins from the moment of arrest but that right
cannot be exercised immediately after arrest. ...' balance has to be
made between the rights of arrested person to have a lawyer and the
duty of the police officer to ensure that the public is protected.
 Ramli bin Salleh v Inspector Yahaya bin Hashim: In order to satisfy
the constitutional requirement of clause (1) of Article 5 that right
should be subject to certain legitimate restrictions which necessarily
arise in the course of police investigation, the main object being to
ensure a proper and speedy trial in the court of law;'
 Mohamad Ezam Mohd Nor & Ors v Menteri Dalam Negeri &
Ors The app had been arrested for an offence under the Police Act
1967. While under the said detention, the applicants were accorded
right of access to counsel,but only allowed within the sight and hearing
of the officers of the centre, and not otherwise. The app averred that it
is an illegitimate restraint to their right to consult their counsel in
confidence, and was in breach of their fundamental rights as enshrined
in Article 5(3) of the Federal Constitution. The said application,
however, was dismissed.
 Saul Hamid v PP Arrested person has the right to be represented by a
practitioner during remand proceeding before a Magistrate under
s117.
The Right to Production before a Magistrate
Art 5(4) FC: Right of an arrested person to be produced before a
Magistrate without unreasonable delay, and in any case within 24 hours of
arrest.
s28 CPC
Computation of 24 hours
s54(1)(b) Interpretation Act if last day of the period includes excluded
day, the period shall be included the following day which is not included.
it’s not applicable for holidays within 6 days
S117 CPC Procedure where investigation cannot complete within 24 hours
 Re Detention of R Sivarasa & Ors: 'It will be noted that sections 28
and 117 have been inserted into the Criminal Procedure Code for a
good reason, so that the detention by the police of a person beyond 24
hours after his arrest is not as a result of an executive act but as a
result of a judicial decision in consonance with Article 5(4) of the
federal Constitution.'
 Ramli bin Salleh v Inspector Yahya b. Hashim judicial discretion to
order the remand of the arrested person under Section 117 of the
Criminal Procedure Code should be exercised sparingly, and among
other factors to be taken into consideration before making such order
are, the seriousness of the offence, and whether a shorter period would
be sufficient to enable the police to complete investigation.
Right to be release pending trial i.e. right to bail
Art 5(4) FC
S29 CPC Release of person arrested
S387 CPC for “bailable offences” (when person may be released on bail)
S388 CPC for “non-bailable offences” (when a person accused of
non-bailable offence may be released on bail)
S117 CPC
 Re Detention of R Sivarasa & Ors: Check case above
 Re Detention of Leonard Teoh: The investigation diary was
produced, plus a letter from the investigating officerwith reasons why
they should detain the accused. The diary contained contemporaneous
detail on what the police had done so far. The mgt was right in issuing
remand.
 Abdul Ghani Haroon
Right to remain silent
S112 CPC
 Omar bin Daud & Anor v Public Prosecutor the accused was asked
to explain why he had elected to say nothing when he was cautioned. In
disallowing the question Edgar Joseph Jr J said: 'I disallowed that
question because, in my view, in electing to remain silent the accused
was merely exercising a legal right and therefore no inference of guilt
could be drawn against him.'
Self Defence
 PP v Kok Khee Hawking vegetables without license. Using criminal
force on a police constable in the execution of his duty. Police did not
give grounds for arrest. Confiscated the dacing and accused assaulted
the officer by hitting the dacing on the police constable. It was held that
the offender was justified in putting up a struggle since he was resisting
an illegal arrest or unjustifiable use of force towards him
Habeas Corpus
S5(2) FC

 Omar b. Daud v PP the accused was asked to explain why he had
elected to say nothing when he was cautioned. In disallowing the
question Edgar Joseph Jr J said: 'I disallowed that question because, in
my view, in electing to remain silent the accused was merely exercising
a legal right and therefore no inference of guilt could be drawn against
him.
Damages
 Saw Kim Hai v R, the court held a person may only claim damages
from wrongful arrest, but it will not affect the court jurisdiction to try
him.
SEARCH &SEIZURE
 SEARCH
Types: (1) Body (2) Person/ premise (3)Premise (with/ without warrant)
1. Body search
S17 CPC: In the presence of Mgt/ Justice of Peace/ Public Officer not
below the rank of Inspector
S19(ii) A search upon a woman shall be conducted by another woman
officer & must be done with full decency
S20 CPC Valid search by Police Officer/ Private person
S20A CPC Procedure for search of person
S22 CPC Search allowed to obtain name/ address of person
4th Schedule CPC:(1)Pat down (2)Strip (3)Intimate (4) Intrusive
2. Person in Premise search
S17 CPC search with warrant done by police not below Inspector/ Mgt/
Justice of Peace
s58 CPC Person is wrongfully confined, Mgt may grant warrant to search
that person and later make order accordingly
3. Premise/ Place search
S51 CPC Power to get property with existence of summon
With warrant
S54(2): Possibility of property would not be produced/ not known/ required
for the purpose of justice
S65 CPC Occupant/ person in behalf must be presence & arrested person
must sign list of items seized
Without warrant
S62 May if reasonable suspicion & delay to obtain warrant
s62A Counterfeit coin s62B Counterfeit currency
Summary search: s63 CPC May by reasonable suspicion
S116 CPC: As per s51, if property will not be produced
s116A: Possibility of concealment
S116B: Access over computerized data
S59 CPC: Person incharge must ingress & assist Police officer
S16(2): If no ingress, Police officer may break the door open
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CRIMINAL PROCEDURE CODE I CHEAT SHEET BY AMIRAH ISRAFI LEB150097/ UNIVERSITI MALAYA/ 44 TH BATCH
 SEIZURE
S20 CPC police officer may seize / kept any items which may relate to the
crime until such arrested person is discharge / acquitted from such offence.
S21 CPC The officer who making an arrest may seize any offensive
weapon from the arrested person.
s62A Counterfeit coin s62B Counterfeit currency
S64 CPC List of items seized via search must be served & signed by
officer in charge of search
S435 CPC Power of member of police to seize
s413 CPC Procedure for seizure
s414 Duration to claim property & expiration of 6 months after public
notification
s415 Items perishable/small value
s416 If owner absent
 Chic Fashion (West Wales) Ltd v Jones The police with the search
warrant has look for the goods which had been stolen from the Ian
Peters Ltd. They did not find any specified goods but instead seized
goods of other makes of the kind which had been stolen previously &
which the police thought to be stolen. It turned out later that such
goods were not the stolen goods. The Pf sued police for trespass. It was
held that the police was not liable for trespass. Lord Denning in his
judgment stated that when a police enters a premise with the search
warrant, he is not only entitle to seize the property listed in the warrant
but also empowered to seize any property that he is reasonably believes
to have been stolen & to be material evidence on the charge of
stealing. (Similar to S435 of CPC) Lord Denning also added that so
long as he acted reasonably and did not retain them longer than
necessary, he is protected. The lawfulness of the police conduct must be
judges at the time when the incident occurred & not by what happen
afterwards.
 Ghani & Ors v Jones A Pakistan girl has went missing and was
believed to have been killed. Police, out of reasonable suspicion has
seized the dad in law, mom in law, and sister in law’s passport and
several letters. Later, the pf (all the above) claim vs the police to get
back their travel documents & damages. The lawfulness of the police in
conducting such search must be judged at the time when incident
occurs not afterwards. In this case, the police have failed to prove that
such passports & letters are material evidence for the murder of the
Pakistan woman. When there is unlawful seize, the police is not just
committing a trespass over a person, but also such seized property
cannot at all be admitted / accepted by the court.
 Re Kah Wai Video(Ipoh) Sdn Bhd There is warrant issued to seize a
few items. In seizing those items, the police have also seized a few items
which were not listed within the warrant. Magistrate later has ordered
such items not listed within the warrant to be returned back to the
owner. It was held that the Magistrate has no power to order for such
return of the unlisted items as the power is rest to the police.
Effect of Illegal Search
 Karuma App has been stopped by police in his movement. That police
later has conducted a body search over him. the test to determine
whether the evidence via unlawful search is admissible or not is to ask
a Qs of whether such evidence is relevant or not to the issue before the
court? So long as it relevant to the current case, the way such evidence
is obtained is irrelevant.
CHARGE
Charge A notice, which conveyed clearness and certainty, which PP
intends to prove vs the accused or of which he will have to clear himself.
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S172 of 2nd schedule Such charge must be signed by PP. If he kept silence,
this is equivalent to the act of demanding for trial / defence.
S152 Contents of charge
S153 Contents of charge in different situations
S154 & Illustration (b) When the offence does not give sufficient notice
on the matter of the charge, the charge should be added with particulars
Illustration (b) Charge must set out manner
S155 Every words used must related to offence
S156 Errors are not fatal unless accused misled by it. Can be cured via s422
S158 Court has power to alter / amend the charge at any time before the
judgment is pronounced. Every amendment has to be reread and explained
to the accused.
Lim Beh v Opium Farmer The offence must be stated precisely &
positively, so that the accused may know with certainty what he is charged
on. This will enable him to answer the charge in the best possible way.
Margarita B Cruz The charge in this case was appeared as if it had gone
into the mangling machine. It is so badly drafted. DPP and magistrate
should read the provision in the Act which create the offence.
Low Kiat Leng The date of the offence is not always significant unless it
us a material part of the alleged offence.
Dato’ Seri Anwar Ibrahim The date of the offence as if its stated within
the charge would signify that such date is material and significant for the
alleged offence.
To Cure Errors As Per Under S422
Ishak Shaari As CPC is procedural in nature, it is designed to further the
end of justice & not to frustrate them by introducing the endless
technicalities.
Amendment of Charge
S158: (Refer above)
S173(h)(ii): Court to amend charge if there is a prima facie for another
offence to be in existence.
173(i): The charge amended must be read to the accused and asked him
whether he is guilty of the offence stated in such amended charge.
S173(j)(i): If He Pleaded Gulity
S173(j)(ii): If He Does Not Pleaded Gulity
S173(j)(iii): If He Is Called To Enter His Defence
PROVISO: However if the accused is to be called as a witness, his
evidence must be taken down before other witnesses for the defence is
being called upon.
PROVISO: The accused elected as a witness as mentioned above must be
able to cross examine on behalf of any other accused person.
Heng You Nang It is not the duty of court to amend the charge, as it’s for
the prosecution to apply for such amendment. S158 doesn’t impose a duty
upon court to amend the charge. S173(h)(ii) make it compulsory for the
court to amend the charge if it’s necessary to do so, but it is not mandatory
on the court to find the law for the offences committed by the accused. In a
clear case where there is a need for the magistrate to alter such charge, he
must do so.
Oh Keng Seng If PP and the accused silenced on the amendment that
ought to be done, court is on position to amend it.
Tan Kim Kang Court may amend at any time before judgment. The best
time is at the close of the case for the prosecution, ie follow the S173 (h), (i)
an d (j).
Liew Cheok Hin The best time to amend is that, ‘the better the earlier’.
However, it is at the close of the evidence for the Prosecution that is the
best position for the court to decide clearly on what is actually the COA is
the accused is required to meet.
Letchumanan a/l Suppiah As per S3 of CJA, no final order over the
charge. Here, the FC held that PP can always appeal vs the decision of the
COA that ordered the charge to be amended from trafficking to only
possession.
Procedure after the amendment of charge
S158(2): New amended charge shall be read & explained to the accused.
S173(i): The charge amended must be read to the accused and asked him
whether he is guilty of the offence stated in such amended charge?
Either
S159: (PLEA) The court shall call upon the accused to state whether he is
ready to be tried based on such amended charge. Then court may proceed
with the trial immediately; or as stated in S160: The court may adjourn the
trial / order new trial with the basis using such amended charge.
or:
S161: (STAY PROCEEDING) – compulsory to provide sanction.
S162: Witness shall be allowed to be recalled.
S173(j)(iii): IF HE IS CALLED TO ENTER HIS DEFENCE - The
accused shall be allowed to produce his evidence + to recall the witnesses +
cross-examine any witnesses present.
Yee Fok Chong As per S162, it’s a must for the party to recall the witness
once the charge is amended. Failure to execute such effect will nullifies the
trial and it is amounting to miscarriage of justice.
Subramaniam Shanmugam As per S162 it is a must for the court to grant
the right to recall the witness. The facts that in this case the learned judge
has ignored such application, and not even inquiring the reason for such
application is resulting a grave injustice.
1 Offence 1 charge
S163: Diff offence must be mentioned in separate charge / 1 offence = 1
charge ; Except for S153(2).
S153(2): CBT (Where the commission of such offence more than once may
be put together as in the manner prescribed in S164)
1 Charge, 1 trial
Except for;
S164: If the accused committing the same nature of offences within the
period of 12 months, he may be tried & charge together.
S165: For any acts that bring about to more than one type of offences, such
person may be tried at one trial for every each of the offence.
S166: If there is doubtfulness over the offence committed, the accused may
be charged with having committing all of the offences.
S170(1): When more person of the same offence / committing the offence
in the same transaction / one commit or one abet = court may decide
whether or not to set up the joint trial.
S170(2): For offence relating to CBT / extortion / cheating / criminal
misappropriation / conceal or assist to conceal for the disposal of property,
these offences may be charged and tried together.
Monogaran Asian v PP The decision to order the joint trial as per S163 /
S164 / S165 etc not a final order therefore not appealable.
Duplicity of Charge

This occur when the 1st rule relating to the 1 offence, 1 charge is not being
adhere to, except for S153(2) = CBT.
Ridzuan Kok Abdullah The offences involved were diff from each other,
done upon diff victim, in diff times / occasions, and related to diff sections
of PC / Statutes. Such duplicity is allowed as per the S153(2) of the CPC
which said that for CBT, its sufficient to specify the gross sum & dates
which the offence is alleged to have been committed without any need to
state out the particulars of the items & the exact date.
Effect of duplicity of charge
Yap Leow Swee The duplicity is said to be illegal & retrial was ordered.
See Yew Poo The duplicity is not an irregularity that can be cured under
S422. It is and illegality, thus making the OCA to quashed the conviction
and order for retrial.
Misjoinder of charges
Mohd Fauzi Omar v PP Police has found the drugs to be in 2 diff
locations. One in kitchen and another one in the room. The applicant here
claims that to combine both of the charges is jeopardizing him. It was held
that the duplicity is said to be illegal & the applicant should have been
charged in 2 diff charge.
PP v Norzilan b. Yaacob There were drugs found within the house. There
were 3 out of 6 residents in the house, but only 2 of them were charged.
The rest were taken as witnesses. All of them were put in 1 charge. Court
held that, there should be separate charges be framed against the accused.
This case illustrated the example of misjoinder of irregularities. (Can be
cure via S422) The accused were acquitted as PP failed to prove the facts
of custody & possession of the drugs.
See Yew Poo The accused has committed rob against 1 victim in two
different locations. Court held that, there should be separate charges for
both of offence that is done in different locations. But this irregularity can
be cure via S422 as long there is no prejudiced caused.
Yap Leow Swee The bus driver has been charged as to be recklessly /
negligently driving the bud in the manner that was dangerous to the public.
The charge stated both allegation of being reckless & negligent. The PP
should prove one of them. The fact that the accused will be left in doubt if
the conviction is to be done, will cause prejudice to the accused.
Joinder of trial
Involved exceptions stated in S164 / S165 / S170 / S166. (Refer above)
As long as the case fall within the above section, the trial is allowed to be
join into 1 trial.
Chin Choy Once the charges are tried together and it contravene to the
CPC’s provisions (not fall within the S164 / S165 / S170 / S166), this will
be = to illegality and it cannot be cure. Any conviction under this illegality
cannot sustained,
Joint Trial
S170(1) When more person of the same offence / committing the offence in
the same transaction / one commit or one abet = court may decide whether
or not to set up the joint trial.
S170(2) For offence relating to CBT / extortion / cheating / criminal
misappropriation / conceal or assist to conceal for the disposal of property,
these offences may be charged and tried together.
Conviction for offences not charged
S167: This refer to S166 where the situation raise the doubtful on the type
of offences committed, but there is certainty that it has been committed.
Charge may be done for 1) only for 1 offence / 2) done for all offences / 3)
alternatively.
Lew Cheok Hin S167 is an exception to a general rule that a person
should not be convicted for an offence that is not charged upon him. There
are 2 tests for this:
1. The charge must be in the way that it could have been framed & tried
together as per S166.
CRIMINAL PROCEDURE CODE I CHEAT SHEET BY AMIRAH ISRAFI LEB150097/ UNIVERSITI MALAYA/ 44 TH BATCH
2. The evidence must be presented in the way that it involved the same
elements for the offence involved. Here, the court has to satisfy itself that
the evidence raised by PP and defence team must be the same.
S168: If the accused has been charged for an offence, he still can be
charged for ‘attempt to commit an offence’.
S169(1): If charge is only for major part of the offence, but later or it is
found out that there is minor offence to be in existence. The accused still
can be charged for it.
S169(2): If charge is only for major part of the offence, but later it was
proven that the accused has committed the minor part of the offence, he
may be charged for it despite the fact that he is not charge for it.
Withdrawal of remaining charges on conviction of one
S171(1): If the accused is convicted with one offence, PP may apply to set
aside other offences. Court may inquire for such application.
S171(2): If the case went to appeal, the conviction is set aside, the
remaining charges will stand.
Outstanding offences when sentencing
S171A(1): In deciding for the sentence, with the consent from the PP and
accused, court may consider to the outstanding offence / offences in which
the accused has admit to.
TRANSFER OF CASES
Transmission
S177A(1) Offence supposed to be tried at HC with consent of PP. Cannot
be prosecuted in subordinate court
Transfer Done under CPC/ Done under statute
Transmission: From SC (No jurisdiction) to HC (Has jurisdiction)
Transfer: From SC (Has no jurisdiction) to HC (Has Jurisdiction)
S177 Tranfer can be done by
Type
Lateral transfer: Transfer between court which have coordinate juris
Vertical transfer: Transfer from lower court to Higher court
Higher Jurisdiction
Refers to vertical transfer. S177 authorizes vertical transfer
When ‘at any stage of proceeding’ refers to at any stage at all\
How transfer is done 2 limbs (1) SC by its’ own initiatives (2) Application iii. Appears or is brought before a court; and
by PP
S417 4 ways for HC to transfer case. Grounds (a)-(e)
S417(1)(a)
 PP v Fan Yew teng s417(a) cannot have strictly literal meaning but
must mean any particular criminal court subordinate to it or thereto. It
is impossible to suppose that legislature contemplated that fair and
impartial trial could not be had in any SC whatsoever.
S417(1)(b)
 Wong Hong Toy v PP This subsection is relevant only during those
time in the past because during those time judges in SC are people who
do not have legal background
 Lin v PP “In the light of decisions I have referred to, s184(1)(b) to be
successfully invoked must be extraordinarily rare one and I find it
extremely difficult to think of one”
S417(1)(aa)-(cc): Orders which HC may grant application under this sec.
S418(1) Modes of application
S418(4) Notice in writing & copy Downloaded by Dhabitah Adriana (dhabitahadriana@gmail.com)
of ground to give PP
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S418A(1) Issue certificate for proceeding to be transferred
S418A(2) Musyt be exercised by PP personally. Even DPP can be
incompetent to issue certificate
S418B When issue of certificate can be done
Transfer under statutes
S25(2) Additional power of HC upon authorization of any written law of
rules of court
One of additional power: Para 12 schedule in CJA
 PP v Lim Shui Wang Accused charged under 39B DDA. Learned HC
judge ordered case to be transferred back to Special session court for
trial. It was held that “There is written law relating to power of
transferring proceeding from HC namely Rules of HC as regard to civil
and CPC with regards to criminal. As the case is criminal therefore
reference made under s417, 418, 418A CPC and 145(3) of FC
Subordinate Court Act 1948
S99A, Para 3(2) 3rd Schedule, s 104
DDA
S41A(1), s41A(4)
Firearms(Increased Penalty) Act 1971
S10(1), s10(2)
BAIL
Definition of bail Some form of property which is deposited or pledged to
a court in order to persuade it to release suspect from custody, on the
understanding that the suspect will return for trial or forfeit the bail.
Type of offences
a) Bailable Offence - Imprisonment less than 3 years or with fine only.
Right of accused
b) Non-bailable Offence - Imprisonment more than 3 years and death
penalty. Discretion of Court
c) Unbailable Offence - Specific provisions in statutes "unbailable".
Absolutely unbailable.
Bailable Offences
Definition in s2 of the CPC
First Schedule to the CPC, Column 5 + 3 years and fine only OR made
bailable by any other law for the time being.
s387(1) any person other than the accused person of a non-bailable offence
is arrested without warrant by a police officer or is brought before the court
and prepared to give bail, such person shall be released on bail. Person
who is entitled to bail
i. Accused of a non-bailable offence; and
ii. Arrested or detained without warrant by a police officer; or
iv. Is prepared to give bail.
 Mohd Jalil bin Abdullah v PP Although records for the applicant
were bad, still entitled to bail as a matter of right as the offence in
question was a bailable offence
 Wong Kim Woon v PP The word "shall be released on bail" given
their literal and natural meaning mean that bail must be offered to the
accused. Bail is mandatory under Section 387.
 Maja ak Kus Remand order under s117 CPC supersedes s.387 CPC
 Michael Raymond Taylor v PP The expression of the word "appears"
used in relation to the issue of a summons whereas the expression "is
brought before a court" is used in relation to the issue of a warrant.
Though there was no arrest but when appellant appeared before court
he was entitled to bail
Non-Bailable Offences
General Rule: The presiding judge has a discretion whether or not to grant
bail depending on the circumstances and facts of each case.
s388 Procedure
Non- bailable offence
S388 refers to three types of non-bailable offences
Factors to consider bail
 PP v Wee Swee Siang, there are nine factors that the Court laid down
to be considered before granting of a bail; 1. Whether there are
reasonable grounds to believe the accused is guilty of the offence 2.
Nature and gravity of the offence 3. Severity and degree of punishment
that might follow 4. Danger of the accused absconding if he is granted
bail 5. Accused's character, means and standing 6. Danger of the
offence being continued or repeated if bail is granted 7. Danger of
witness being tampered with 8. Opportunity of the accused to prepare
for his defence 9. Long period of detention or custody between the date
of charge and date of trial. The High Court also observed that the
primary consideration - to ensure the presence of the accused at the
trial. In addition, it is the Court's discretion to grant bail or to refuse it
after considering the circumstances of the case. If it is not shown that
refusal to grant bail would prejudice the accused in preparation of his
defence, bail can be properly refused
 PP v Latchemy The respondent was a woman charged with the offence
of murder under Section 302 of the Penal Code, an offence punishable
with death. The respondent was nevertheless granted bail in the
Magistrate's court and against this order of bail, the public prosecutor
appealed. High Court held that "the criterion by which a magistrate
should allow bail in cases of this type, in my view, is only in those cases
where he is convinced that the reasons put forward by the applicant are
said to be exceptional and special reasons. In the present case, the
ground is that the accused is a mother of ten children and youngest of
them is still under breast-feed." The reasons put forward in this
application fall far short of being exceptional and very special reasons,
therefore application should have been refused.
 Che Su binti Daud v PP The accused was charged together with her
husband and brother for the offence of trafficking in dangerous drugs
contrary to s39B(1) of DDA, an offence which was then punishable
with death or life imprisonment. The accused applied for bail and in
support of her application argued she had six children and the
youngest was still being breast-fed. Allowed the bail and distinguished
the decision in Latchemy on the grounds that there was no affidavit
filed in reply by the DPP who opposed the grant of bail, in Latchemy
which the only ground for application was 'a mother of 10 children and
youngest of them still under breast-fed'. The fact that accused was
breast-feeding a child was not an exceptional or very special reason for
granting bail, but distinguish that the accused was not charged alone
but jointly with her husband and brother. In this case, the offence is
punishable with death or imprisonment for life. However, it appears
that the decision in Che Su was per incuriam as the learned judge
failed to take into consideration section 41B of DDA which was came
into effect few days before the decision in Che Su. Mandatory for
refusal of bail for anyone charged with S39B - it is not in the public
interest to grant bail. Thus, where an accused is charged under DDA
for an offence punishable with death, imprisonment for more than five
years or where the offence is punishable with imprisonment for five
years or less but the PP certifies in writing that it is not in the public
interest to grant bail, the accused will not be granted bail even if the
accused is a woman. In such a case, the offence is absolutely
unbailable!

 Leow Nyiok Chin v PP In this case, the accused was 58 years old
woman charged with murder of her husband. The accused's counsel
relied on the accused being a woman and therefore eligible for bail. In
addition, the counsel tendered medical report on the psychiatric and
medical condition in which she will need a place that will provide
mental, physical and emotional stability. The High Court judge
referred to the case of Latchemy and found that the medical condition
did not add up to exceptional and special reasons for bail.
 PP v Dato' Balwant Singh The accused an 81-year old advocate and
solicitor was charged with the offence of murder. The defence
contended that the medical condition of the accused brought the case
within the proviso to s 388(1) of the CPC. In support of its argument,
the defence tendered a medical report on the accused which stated that
the accused suffered from several serious diseases.The standing of the
accused and his age also militate against the prospect of him
absconding. Though medical facilities are available in the prison, it
may be preferable for the accused to be in a place where he can have
access to immediate medical treatment. The exceptional circumstances
of this case compelled me to conclude that the accused ought to be
enlarged on bail subject to the imposition of certain conditions. Held:
Any person who is sick or infirm may be released on bail by virtue of
the proviso to Section 388(1). However, the sickness must be one which
poses a risk or danger to the accused person.
 Manickam & Ors The amount of bail should not be excessive but be
reasonable in the circumstances of the case as being sufficient to
secure the attendance of the person arrested or charged with an offence.
An excessive bail bond may defeat the graning of bail as the accused
may find difficulty in getting a bailor acceptable to the court. The
reason arises from the principle and basis of our criminal law that the
accused is presumed innocent until proven guilty. An excessive bail
amount has the effect of punishing the accused even before he is found
guilty of the offence for which he is charged with. The bail amount
alone cannot be the sole consideration to ensure the attendance of the
accused in Court. In fixing the amount the court has to take into
consideration the circumstances of each particular case, such as for
instance whether the accused has co-operated with the police in their
investigations and whether the accused has benefitted from the fruits of
his crime.
 Zulkiflee bin Hj Hassan v PP The applicant was charged under S409
of the Penal Code and faced seven charges under the same section
involving 6.7 million. He claimed trial to all seven charges and allowed
bail of 1 million in two sureties and his passports were ordered to be
impounded. He applied to HC for an order that his bail be reduced to a
lesser amount. Held: Applicant is unable to find the two sureties to
secure such bail. The court has to take into consideration that the
applicant has been co-operative with the police and no evidence that he
has benefited from 6.7 million. Amount reduced.
 Low Chit Bah v PP Court refused to reduce a bail of 1 million in two
sureties since there was very likelihood that the applicant would
abscond from Singapore to evade trial if bail was reduced.
 Zulkiflee Hj Hassan v PP HC reduced the initial sum from 1 million
in 2 sureties to RM200k in 2 sureties. Together with the impounding of
both his international and restricted passports.
 PP v Dato' Balwant Singh The accused be enlarged on bail in the sum
of RM500,000 with two sureties with security to be furnished. It is
subject to acceptance of the following conditions: (i) the accused is to
surrender his firearm and the licence relating thereto to the police
immediately; (ii) all passports to be surrendered to the court; (iii) the
accused is to report to the police once in two weeks; (iv) the accused is
to remain indoors from the hours of 6pm-8am; (v) the accused is not to
be present at any open public place or attend any public functions save
for religious and family activities; (vi) the accused is not to leave Kuala
Lumpur and Petaling Jaya without leave of court; (vii) the accused is to
cease his legal practice within a period of one week from 8 August
2002.
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CRIMINAL PROCEDURE CODE I CHEAT SHEET BY AMIRAH ISRAFI LEB150097/ UNIVERSITI MALAYA/ 44 TH BATCH
 PP v Dato' Mat In discerning the power of the Court in granting or
refusing bail under Section 388, the HC relied on Indian Authorities
which seem to favour the view that when such discretion is given, that
discretion in itself implies a discretion to grant bail subject to certain
conditions. SC recognized the fact that a condition in the bail bond is
merely a complimentary security which reduces a large amount of bail
which the court would otherwise require. Such condition would provide
an adjunctive or supplemental security towards ensuring the
attendance at his subsequent trial.
Discharge of Surety
s393 Situation may change and surety(s) may not wish to continue acting as
one
Dato' Seri Anwar Ibrahim Re application for bail Possible, to the same
Court that rejected the bail and if there is a change in circumstances, bail
may be granted- PP v Abdul Rahim bin Hj Ahmad
POWERS OF PUBLIC PROSECUTOR
Art 145(3) FC
To institute proceeding
 Long bin Samat v PP Where court held PP had discretionary power to
institute a proceeding under any charge he deems fit and court cannot
interfere with the PP’s discretionary power, thus, the trial in
Magistrate’s Court in this case is not a nullity.
 PP v Lee Tin Bau Where court held that a judge cannot amend the
charge as it is the discretionary of PP to institute the proceeding under
any charge suitable.
To conduct proceeding
S376 CPC provides PP shall have control and direction of all criminal
prosecution under CPC.
S377 CPC provides conduct of prosecution shall be by PP
 PP v Datuk Haji Harun Abdulcadeer J states that to conduct means to
lead, guide & manage.
 Jayaraman v PP limits the power of PP where court shall have the
power to order for the joint or separate trial.
To discontinue proceedings
S254 provides PP may decline to prosecute
S254A the discontinued charge may be reinstate as it does not amount to
acquittal.
 Poh Cho Ching v PP where court held that PP is empowered to
discontinue criminal proceedings. Though discontinuance does not
mean being acquitted.
S378 provides only PP, senior DPD, or DPP may appear in criminal appeal.
Personal power of PP
i) S418A CPC to issue certificate transfer cases from subordinate courts to
the High court
ii) S68(2) CPC –any matters concerning the judge/magistrate which
amount to criminal intimidation or defamation
iii) S50 CJA –give notice of appeal against acquittal
iv) S66 CJA –refer question of law to the Federal Court
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OF PROCEEDING AdrianaEffect
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where no consent of PP is obtain:
 PP v Manager, MBF building service – ordinary meaning ‘to 1. the charge is illegal and the trial will be a nullity.
institute’ means to commence When proceedings are instituted
2. It is not curable under S422CPC Chua Chor Kian
When the accused is arrested
When sanction is required?
 Tan Mee Kong and Re Kah Wai –The court held that for copyright
cases, proceeding are instituted when the accused is arrested S129 CPC (offence relating to public servant, giving false evidence,
documents and forging),
When the accused is called to plead guilty
S130 CPC
 R v Elliot and Perumahan v PP – Proceeding are instituted when the
accused person plead to the charges Effect of lack of consent
 Kyohei Hosai v PP render the trial a nullity (Hassan b Isahak)
 PP v Tohabin Myusuf support the 2nd view PP discretion to institute  Joginder Singh– it is an irregularities and curable under S422 CPC
proceedings
Art145(3) wide discretionary power for PP to institute proceeding
S376CPC
 Long Bin Samat v PP –the PP had the discretion to prefer whatever
charge be deemed fit and the court could not interfere with the exercise
of his discretion
 Johnson Tan Han Seng v PP -PP has the discretion to prefer which
charges
 Sukma Darmawan v Ketua pengarah penjara Malaysia– PP has the
discretion to prefer where to charge under art145(3) FC, in other
words art145(3) FC prevail over Art121 FC
Requirement of Consent and Sanction of PP
If there is no evidence of some form of authorization under art145(3) FC to
institute criminal proceedings, other than AG personally appears, he has no
evidence basis to hold the criminal proceeding is properly instituted.
(institute proceeding may be manifested by consent or sanction)
Distinction between sanction and consent
 Abdul hamid v PP– Consent is more serious than sanction in nature
and required deep consideration Requirement of consent
S177A CPC– an offence to be tried by the high court shall not institute
except with the PP consent
S39B DDA 1952– offence for drug trafficking except with the consent of
PP
S80 ISA 1960– any offence in this act punishable with imprisonment of 7
years or more shall not be institute except with the consent of PP
 PP v Oi Hee Koi– the presence of DPP means implied consent of the
PP
 Johson Tan Han Seng v PP– DPP could give consent because he is
the alter ego of the PP
Must consent be in writing?
Consent may be oral if not stated by statue and vice versa
 Jamali bin Adnan v PP
 Goh Keat Peng v PP– of the state specific state that consent of the PP
must be in writing, the nit must be in writing and the doctrine of alter
ego has no application