Advanced Criminal Procedure II

Week 2 Lecture (20/10/2020)

Topic: Transfer

Power of Subordinate Courts

i. Section 177 of CPC

- Magistrate may stay proceedings and transfer a case to a higher court if:
1. At any stage of the proceedings, he is of the opinion that the case is one which
ought to be tried by a court of higher jurisdiction than his own or
2. Before or during such trial on application made by the public prosecutor.
- Types of transfer allowed: vertical transfer.
- Transfer can be made from ‘any cause’.
- ‘any cause’ = to include the grounds set out in Section 147 of CPC (PP v Fan Yew Teng
[1973] 2 MLJ 1)
- Include a transfer from trial in a sessions court where a magistrate is of the opinion that
in the circumstances of the case, powers of punishment which the magistrate possesses
would be inadequate.
- Guideline as per S177:
a. Vertical Transfer only
b. Grounds in Section 147
c. Within local jurisdiction of the court – need to look at every court’s local jurisdiction.

ii. Section 104 of Subordinate Court Act

- Manokaram & Anor vPP [1979] 1MLJ 262: This type of transfer only applicable where:
a. Courts are of co-ordinate jurisdiction
b. The transfer is effected by the transferor court.
- Guidelines:
a. Lateral transfer
- Must be of co-ordinate jurisdiction (PP v Ho Huah Teong [2001] 4 mlj 21])

b. Ordered by transferor court

- Manokaran & Anor v PP [1979] 1 MLJ 262

c. Grounds of transfer: fundamental requirements of fairness and justice

- PP v Seagaran a/l S mathavan: joint trial, there’s series of acts that involves the same
witnesses and reference to the same documents. To save time and cost for all parties.
- Ahmad Abu Bakar [1998] 7 MLJ 391: likelihood of bias – wanted to act impartial. Here,
the magistrate A transferred the case directly to Magis B on the ground that he felt
cheated that he was not told about appellant’s previous conduct.

d. Within local jurisdiction.

- Magistrate court: look what is the extent of the territory of the magistrate court.
- Section 76 of SCA and Section 2 of CPC.
- Sessions Court: Section 59 of SCA
- Old S59: arising in any part of the local jurisdiction of the respective HC
- New S59: arising in any part of peninsular Malaysia.
 - If it is in Peninsular Malaysia, it is the local jurisdiction of the Session Court.

iii. Section 99A; Paragraph 3(2) Third Schedule of SCA

- ‘every sessions court and magistrates court shall have further powers and jurisdiction
set out in third schedule.
- Third Schedule Para 3(2): confers power on MC on application or on its own motion to
transfer ______.
- Kee Chai Heng v Ketua Polis Daerah Kuala Muda
- Manokaran & Anor v PP (979) 1 MLJ 262: transfer must not be made by the transferor
court.

iv. Section 177A of CPC

- Transmission of cases for trial in High Court by the Magistrate.
- A prosecution in respect of an offence which is to be tried by HC in accordance with
Chapter X shall not be instituted _________.
- This provision was enacted following the amendments introduced in DDA. (S177A of CPC
is identical to S39B (3) & (4) of DDA and S177A (2) of CPC is identical to S41A (1) of DDA)

Power of High Court

i. Section 417 of CPC

- High Court may under Section 417(2) act on:
a. A report from the subordinate court
b. An application from PP
c. Application of the accused
d. From High Court’s own initiative
- Grounds to transfer (SECTION 417(1) (A-E) CPC
- Types of transfer:
a. Any offence be tried by any court not empowered under S121-126. [S417 (1) (aa) of
CPC] – not having local jurisdiction
b. Any particular or class of cases be transferred from a criminal court subordinate to it
to any other criminal court of equal or superior jurisdiction [S417 (1) (bb) CPC]
– “court subordinate to it”:
 High Court since igh court exercises their local jurisdiction for their respective
states or territory
 Where the local jurisdiction of the subordinate court is yet to be gazette
 Manshor bin Omar v PP – accused’s application for revision of KL session court
was ________.
 PP v Segaran a/l Mathavan – transfer from SC in PJ(SA) to SC in KL = allowed as
it is in the interest of justice of HC in SA.
c. Any particular case be transferred to and tried before the High Court. [S417 (1) (cc)
CPC]
 Lim Shui Wang & Ors [1979] 1 MLJ 65 – S417 sets out the power of HC to
transfer cases to itself but not from itself to a subordinate court. (dari kes court
bawah ke HC. Cannot from HC ke bawah or to other HC)
 Refer to Section 20 of CJA – The Chief Judge yang tentukan this case kerja siapa.
 ii. Section 25(2) of CJA read together with Para 12 of the schedule
- “HC shall have the additional powers set out in the schedule and all such powers shall be
exercised in accordance with any written law or rules”

Public Prosecutor’s power to transfer

- Section 418 A of CPC

- Section 41A of DDA
- Regulation 8 of ESCAR
- Section 11 of the Firearms (Increased Penalties) Act