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IN THE HIGH COURT OF MALAYA IN KUALA LUMPUR

IN THE FEDERAL TERRITORY OF KUALA LUMPUR
[CRIMINAL APPLICATION NO.: WA-42(ORS)-5-09/2020]

BETWEEN

PUBLIC PROSECUTOR … APPELLANT

AND

1. GULAM RUSOL MD ISMAIL

2. KAMARUZZAMAN KAMALUDEEN …RESPONDENTS

Abstract: In an application for a joint trial of cases from different

local limits of jurisdiction, the burden is on the prosecution to
establish the same transaction threshold by showing the exact
proximity of time and place of commission of the crime. A joint
trial should not be held when there appears to be a risk of
prejudice against the accused persons or when there is a danger of
irrelevant evidence being adduced against either or other accused
persons.

CRIMINAL PROCEDURE: Trial - Joint trial - Transfer -

Prosecution applied for transfer and joint trial of cases - Prosecution
submitted that cases intended to be joint for trial in different local
limits of jurisdiction have a nexus and are related with common
witnesses - Different nature of offences - Whether same transaction
threshold has been met - Whether there was exact proximity of time
and place of commission of offence - Whether element of continuity of
action had been fulfilled - Whether there would be risk of prejudice to
accused should joint trial be held - Whether subordinate courts have

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restriction of local limits of jurisdiction assigned to them - Whether

subordinate courts could hear substantive matter which arose outside
its local limits of jurisdiction

[Appellant’s appeal dismissed.]

Case(s) referred to:

Amrita Lai Harza & Ors v. Emperor [1915] 42 Cal 957 (refd)

Datuk Haji Wasli Mohd Said v. PP & Another Case [2006] 6 CLJ 1
HC (refd)

Jayaraman & Ors v. PP [1979] 1 LNS 36 HC (refd)

PP v. Segaran S Mathavan [2010] 2 CLJ 121 HC (refd)

Public Prosecutor v. Loh Ang Sing [1964] 1 LNS 145 HC (refd)

Rex v. A Govindasamy And Kok Hak Beng [1934] 1 LNS 64 HC (refd)

Taman Rimba (Mentakab) Sdn Bhd v. Sin Yew Poh Tractor Works
[2002] 2 CLJ 112 HC (foll)

TB Mukherji v. The State [1954] Cri LJ 1072 (refd)

Legislation referred to:

Criminal Procedure Code, ss. 163, 164, 165, 166, 170

Malaysian Anti-Corruption Commission Act 2009, s. 18

Penal Code, s. 403

Subordinate Courts Act 1948, ss. 59 (1), 99A, 104

GROUNDS OF DECISION

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A) INTRODUCTION

[1] This is an appeal by the Appellant against the decision of the

learned Sessions Court judge in dismissing their application for
the transfer and joint trial in respect of the case of Public
Prosecutor v. Gulam Rusol bin Md Ismail case no. WA-62R-10-
07/2020 and Public Prosecutor v. Kamaruzzaman bin
Kamaludeen case no. WA-62R-11-07/2020 (“Kuala Lumpur
Court cases”) and Public Prosecutor v. Kamaruzzaman bin
Kamaludeen case no. NO. PB-62R-4-07/2020 (“Butterworth
Court cases”).

B) BACKGROUND

[2] In order to better appreciate the essence behind the submissions

of parties, it is necessary to set out the charges in both the Kuala
Lumpur cases as well as the charges in the Butterworth case.

Kuala Lumpur cases

Charge against the First Respondent

“Bahawa kamu pada 16 Disember 2014 di Pejabat

Pembangunan Herba, Kementerian Pertanian dan Industri Asas
Tani, Aras 2, Bangunan Galeria PjH, Lot 29, Jalan P4W,
Presint 4, Persiaran Perdana, dalam Wilayah Persekutuan
Putrajaya sebagai President dan Pengarah Syarikat
Natureceuticals Sdn Bhd telah mengemukakan permohonan
bertajuk NKEA PERTANIAN EPP#1 (HERBA): PERMOHONAN
TUNTUTAN BAYARAN BALIK DIBAWAH SKIM NRGS No Ruj :
NC/MOA/0914/BiI(001) bertarikh 12.12.2014 bagi tuntutan
pembayaran balik pembelian Stickpack Machine berjumlah

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RM1,225,000.00 kepada ajen Kerajaan Malaysia iaitu

Nordanial bin Rohimi, Pegawai Tadbir N41 dengan niat hendak
memperdayakan prinsipalnya iaitu Kementerian Pertanian dan
Industri Asas Tani yang mana kamu mempunyai sebab untuk
mengetahui dokumen tersebut mengandungi butiran matan palsu
iaitu salinan lnvois Nothern Petrochem Sdn Bhd (NPSB) Inv
No:NCSB/PE.012/14, salinan Purchase Order Natureceuticals
Sdn Bhd PO No:000138, salinan Payment Voucher
Natureceuticals Sdn Bhd PV No.0686, salinan Payment Voucher
Natureceuticals Sdn Bhd PV No.0668, salinan cek Maybank
no.1952268 dan salinan cek Maybank no.195285 yang
dilampirkan sedangkan sebenarnya pembelian Stickpack
Machine tersebut tidak pernah dibekalkan dan dengan itu kamu
telah melakukan suatu kesalahan di bawah Seksyen 18 Akta
Suruhanjaya Pencegahan Rasuah Malaysia 2009 dan boleh
dihukum di bawah Seksyen 24 Akta yang sama.”

Charge against the Second Respondent

“Bahawa kamu pada 16 Disember 2014 di Pejabat

Pembangunan Herba, Kementerian Pertanian dan Industri Asas
Tani, Aras 2, Bangunan Galeria PjH, Lot 29, Jalan P4W,
Presint 4, Persiaran Perdana, dalam Wilayah Persekutuan
Putrajaya bersubahat dengan Gulam Rusol bin Md Ismail,
sebagai President dan Pengarah Syarikat Natureceuticals Sdn
Bhd telah mengemukakan permohonan bertajuk NKEA
PERTANIAN EPP#1 (HERBA) : PERMOHONAN TUNTUTAN
BAYARAN BALIK DIBAWAH SKIM NRGS No Ruj :
NC/MOA/0914/BiI(001) bertarikh 12.12.2014 bagi tuntutan
pembayaran balik pembelian Stickpack Machine berjumlah
RM1,225,000.00 kepada ajen Kerajaan Malaysia iaitu
Nordanial bin Rohimi, Pegawai Tadbir N41 dengan niat hendak
memperdayakan prinsipalnya iaitu Kementerian Pertanian dan
Industri Asas Tani yang mana kamu mempunyai sebab untuk

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mengetahui dokumen tersebut mengandungi butiran matan palsu

iaitu salinan Invois Nothern Petrochem Sdn Bhd (NPSB) InV
No:NCSB/PE.012/14, salinan Purchase Order Natureceuticals
Sdn Bhd PO No:000138, salinan Payment Voucher
Natureceuticals Sdn Bhd PV No.0686, salinan Payment Voucher
Natureceuticals Sdn Bhd PV No.0668, salinan cek Maybank
no.1952268 dan salinan cek Maybank no.195285 yang
dilampirkan sedangkan sebenarnya pembelian Stickpack
Machine tersebut tidak pernah dibekalkan dan dengan itu kamu
telah melakukan suatu kesalahan di bawah Seksyen 18 Akta
Suruhanjaya Pencegahan Rasuah Malaysia 2009 dan boleh
dihukum di bawah Seksyen 24 Akta yang sama.”

Butterworth cases

Charges against the Second Respondent

First charge

“Bahawa kamu dari 5 Disember 2014 sehingga 11 Mei 2015 di

RHB Bank Berhad, 2784 & 2785, Jalan Chain Ferry, Taman
Inderawasih, Perai, dalam Daerah Seberang Perai Tengah,
dalam Negeri Pulau Pinang sebagai Pengarah Syarikat
Northern Petrochem Sdn Bhd dan dengan curangnya
menyalahgunakan harta, iaitu wang sejumlah RM 5,600.00
kepunyaan Syarikat Natureceuticals Sdn Bhd dan dengan itu
kamu telah melakukan satu kesalahan yang boleh dihukum di
bawah seksyen 403 Kanun Keseksaan.”

Second charge

“Bahawa kamu pada 29 Disember 2014 di Ambank (M) Berhad,

No.52, Jalan Todak 2, Pusat Bandar Seberang Jaya, dalam
Daerah Seberang Perai Tengah, dalam Negeri Pulau Pinang
sebagai Pengarah Syarikat Northern Petrochem Sdn Bhd dan
dengan curangnya menyalahgunakan harta, iaitu wang sejumlah

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RM 920.00 kepunyaan Syarikat Natureceuticals Sdn Bhd dan

dengan itu kamu telah melakukan satu kesalahan yang boleh
dihukum di bawah seksyen 403 Kanun Keseksaan.”

Third charge

“Bahawa kamu dari 15 Disember 2014 sehingga 6 Mac 2015 di

Malayan Banking Berhad, 2873 & 2874, Pusat Perniagaan
Rozhan, Alma, dalam Daerah Seberang Perai Tengah, dalam
Negeri Pulau Pinang sebagai Pengarah Syarikat Northern
Petrochem Sdn Bhd dan dengan curangnya menyalahgunakan
harta, iaitu wang sejumlah RM 8,800.00 kepunyaan Syarikat
Natureceuticals Sdn Bhd dan dengan itu kamu telah melakukan
satu kesalahan yang boleh dihukum di bawah seksyen 403
Kanun Keseksaan.”

Fourth charge

“Bahawa kamu dari 8 Disember 2014 sehingga 27 Mei 2015 di

Public Bank Berhad, 407-A, Jalan Jelutong, dalam Mukim
Jelutong, dalam Daerah Timur Laut , dalam Negeri Pulau
Pinang sebagai Pengarah Syarikat Northern Petrochem Sdn Bhd
dan dengan curangnya menyalahgunakan harta, iaitu wang
sejumlah RM 81,460.00 kepunyaan Syarikat Natureceuticals Sdn
Bhd dan dengan itu kamu telah melakukan satu kesalahan yang
boleh dihukum di bawah seksyen 403 Kanun Keseksaan.”

[3] On 21.8.2020, the Appellant applied for the Kuala Lumpur Court
cases to be transferred to Butterworth and to be jointly tried
with the Butterworth Court cases.

[4] On 3.9.2020, the learned Sessions Court judge dismissed the

Appellant’s application and hence the appeal before this court.

C) ANALYSIS AND FINDINGS

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[5] The issues that arise for consideration and determination are as
follows:

i) Whether a joint trial ought to be held of the Kuala Lumpur

and the Butterworth cases?

ii) Whether the Kuala Lumpur cases ought to be transferred to

Butterworth to be heard?

i) Whether a joint trial ought to be held of the Kuala Lumpur

(KL) and the Butterworth cases?

[6] The Appellant submitted that the reasons a joint trial ought to be
held include the fact that the KL cases and the Butterworth cases
have a nexus and are related, the witnesses are common to both
cases, saving of costs, safety of the documents and discouraging
of travel during this time.

[7] The general rule according to section 163 of the Criminal

Procedure Code (CPC) is that every for every distinct offence
there shall be a separate charge.

[8] Section 163 reads as follows:

“For every distinct offence of which any person is accused there

shall be a separate charge, and every such charge shall be tried
separately, except in the cases mentioned in sections 164, 165,
166 and 170.”

[9] There are 4 exceptions to the general rule in section 163 that
each separate charge shall be tried separately and these are
found in sections 164, 165, 166 and 170 of the CPC.

[10] Section 164 stipulates that 3 offences of the same kind within 12
months may be charged together. Section 165 provides that if in
one series of acts so connected together as to form the same

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transaction more offences than one are committed by the same

person, he may be charged with and tried at one trial for every
such offence.

[11] Section 166 states that where it is doubtful what offence has
been committed in a single or series of acts, the accused may be
charged with having committed all or any of those offences and
any number of the charges may be tried at once.

[12] It is important to note that all the above sections however,

generally although not exclusively, apply to situations where an
offence is committed by one accused person and the use of the
phrase “may” in those sections indicates that it is not mandatory
for the court to order a joint trial but empowers the court with a
measure of discretion.

[13] In cases involving more than one accused, section 170 is

relevant and reads:

170. When persons may be charged jointly

(1) When more persons than one are accused of the same offence
or of different offences committed in the same transaction, or
when one person is accused of committing an offence and
another of abetment of or attempt to commit the same offence,
they may be charged and tried together or separately as the
Court thinks fit, and the provisions contained in the former part
of this Chapter shall apply to all the charges.

[14] Section 170 would apply to the factual matrix in this case with
respect to the charges here. Once again the employment of the
phrase “may” indicates that notwithstanding the fact that the
facts of a case fit into the requirements of the section the court
is empowered with a discretion whether to order joint or
separate trials.

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[15] This is supported by the case cited by learned counsel for the
Second Respondent of Public Prosecutor v. Loh Ang Sing [1965]
2 MLJ 129 which held at page 130 that:

“If the prosecution wishes to apply for joint trial it is for the
prosecution to justify it. The prosecution has all the facts and
should have little difficulty in making out a good case for a joint
trial. Even though an offence or offences are committed in the
same transaction it is still a matter for the presiding magistrate
to decide whether accused should be tried together or
separately. How he is going to exercise his discretion must
necessarily depend on the facts of each case. The discretion
must of course be exercised judiciously.”(Emphasis added)

[16] Besides the discretion being vested in the court, the case also
places the burden of applying for a joint trial on the prosecution.
See also Datuk Haji Wasli Mohd Said v. PP & Another Case
[2006] 5 MLJ 172 also cited by the Second Respondent.

[17] As to what constitutes “same transaction” within the meaning of

section 170, the case of Amrita Lai Harza & Ors v. Emperor
[1915] 42 Cal 957 held:

“A comprehensive formula of universal application cannot be

framed regarding the question whether two or more acts
constitute the “same transaction”; the circumstances which
must bear on its determination in each individual case are
proximity of time, unity or proximity of place, continuity of
action and community of purpose or design “.(Emphasis added)

[18] See also the case of Jayaraman & Ors v. PP [1979] 2 MLJ 88
which followed Amrita Lai Harza.

[19] It is now necessary to analyse whether the criteria here have met
the “same transaction” threshold.

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[20] It is plain from a reading of the charges that the offences did not
occur at the same time and place. The two charges against the
First and Second Respondents in the KL case are that the
offences were committed on 16.12.2014 whereas the charges
against the Second Respondent in the Butterworth cases are on
all different dates in December 2014 as well as other dates.
Although most offences were committed within the same month,
there is no exact proximity of time.

[21] As far as the place of the alleged offences are concerned, the
two charges against the First and Second Respondents in the KL
case state that the offence was committed in the Federal
Territory of Putrajaya whereas the charges against the Second
Respondent in the Butterworth cases state the offences to have
been committed in Butterworth and Penang. There is thus no
proximity of place.

[22] The nature of the offences also differs in that the charges
against the First and Second Respondents in the KL case are
under the Malaysian Anti-Corruption Commission Act 2009
whereas the charges against the Second Respondent in the
Butterworth cases are under section 403 Penal Code.

[23] The nature of the KL charges relates to the offence of intent to

deceive principle by agent under section 18 of the Malaysian
Anti-Corruption Commission Act 2009 whereas the nature of the
Butterworth cases relates to dishonest misappropriation of
property under 403 Penal Code. The element of continuity of
action is also thus not fulfilled.

[24] As evident from the charges, the First Respondent is not

involved in the misappropriation charges in the Butterworth
cases while the First Respondent is only involved in the
submission of false claims in the KL charge whereas the Second

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Respondent is charged in the KL charge for aiding and abetting

the First Respondent in the KL charge.

[25] As can be appreciated therefore, should a joint trial be held,

there is also a risk of prejudice to the Respondents as there is a
danger of irrelevant evidence being adduced against either or
both Respondents.

[26] The amount involved in the misappropriation charges also is

different from the amount involved in the corruption charges.

[27] The only discernible connection between the cases is that in the
Butterworth cases, the Second Respondent as director of
Northern Petrochem Sdn Bhd is charged with misappropriation
of monies belonging to Natureceuticals Sdn Bhd of which the
First Respondent is the president and director of, while in the
KL cases, the First and Second Respondent are charged with
submission of false claims and abetment thereof of false
invoices of Northern Petrochem Sdn Bhd and purchase orders
and payment vouchers of Natureceuticals Sdn Bhd.

[28] But this fact alone does not justify that a joint trial be held. In
other words, by just merely alluding to the respective charge
sheets for the KL and Butterworth cases, the Appellant has
failed to prove the nexus of subject matter. See Rex v. A
Govindasamy and Kok Hak Beng [1935] MLJ 23.

[29] The Appellant has thus also failed to prove the continuity of
purpose or design with regard to the charges in the KL cases and
the Butterworth cases.

[30] The required criteria set out in Amrita Lai Harza have not been
met to fulfil the “same transaction” test. The fact that it is
inconvenient for the witnesses to shuttle between KL and
Butterworth even at this time and for the documents to be
transported between the two venues is inconsequential.

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Inconvenience or otherwise is not the test of whether a joint trial

ought to be held.

[31] Even assuming the test of “same transaction” has been met
(which it has not), this does not mean that a joint trial must be
held.

[32] In the case of Datuk Haji Wasli Mohd Said v. PP & Another
Case [2006] 6 CLJ 1 it was held:

“The law is that a joint trial may be held and not that it must
be held. A court is never obliged to hold a joint trial. Even
where it can hold it, it is open to it to hold separate trials for
the various offence. A prudent Judge would, therefore, always
hold separate trials whenever he has the slightest doubt about
the validity of a joint trial.” (Emphasis added)

[33] In TB Mukherji v. The State [1954] Cri LJ 1072, it was held

that: -

“The Court should not take unnecessary risk in holding a joint

trial in doubtful cases. It is short of foolishness to hold a joint
trial, unless its legality is beyond dispute, and take the risk of
the trial being held to be invalid by higher Court. If the higher
Court does not order a retrial, there may be serious miscarriage
of justice from the holding of a joint trial. If it orders retrial,
though justice may be done ultimately, it would be done after a
waste of public time and money and unnecessary expenditure
and inconvenience to the parties. There can be no excuse for all
this. The law is that a joint trial may be held and not that it
must be held. Even where it can hold it, it is open to it to hold
separate trials for the various offences, A prudent judge would,
therefore, always hold separate trials whenever he has the
slightest doubt about the validity of a joint trial……The Public
Prosecutor also is charged under the duty of seeing that the

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joinder of charges or persons is legal and of advising the Judge

not to hold a joint trial in doubtful cases.” (Emphasis added)

[34] The sum total of the authorities on this subject underscores the
position that a joint trial may be held and not must be held.
Under all the circumstances, and for the reasons described
above, I find that the learned Sessions Court judge had not erred
when she exercised her discretion in not ordering for a joint trial
to be held.

iii) Whether the Kuala Lumpur cases ought to be transferred to

Butterworth to be heard?

[35] Section 104 of the Subordinate Courts Act 1948 (SCA) reads:

104. Power of Sessions Court Judge or Magistrate to order

transfer of criminal cause or matter

A Sessions Court Judge or a Magistrate shall have jurisdiction

in any criminal cause or matter, whether or not he has
jurisdiction finally to hear and determine the same, to order, in
any case where the interests of justice so require, that the cause
or matter be transferred to any other Sessions Court or
Magistrates’ Court, as the case may be, which in his opinion has
jurisdiction to hear and determine the same, and the same may
be continued in that other Court accordingly:

Provided that nothing in this section shall be deemed to confer

jurisdiction on any court to which a proceeding is so
transferred, if that court would not otherwise have jurisdiction
in respect thereof.

[36] Section 99A SCA reads:

99A. Further powers and jurisdiction of courts

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In amplification and not in derogation of the powers conferred

by this Act or inherent in any court, and without prejudice to the
generality of any such powers, every Sessions Court and
Magistrates’ Court shall have the further powers and
jurisdiction set out in the Third Schedule.

THIRD SCHEDULE

[Section 99A]

ADDITIONAL POWERS OF SESSIONS COURTS AND

MAGISTRATES’ COURTS

1. …………………………

2. …………………………

3. Transfer of proceedings.

(1) [Deleted by Act 7 of 1964].

(2) Power, on application or of its own motion, to transfer any

proceedings to another court of co-ordinate jurisdiction.

[37] The above provisions set out the general powers of the Sessions
Court to transfer a case to another court of co-ordinate
jurisdiction where the interests of justice so require. However
the transfer of proceedings can only be made to a Sessions Court
that has the jurisdiction to hear and determine the same.
Jurisdiction would have to refer to both subject matter and
territorial jurisdiction.

[38] How is this jurisdiction to be determined and where is it to be

found?

[39] Section 59 of the SCA reads:

59. Constitution and territorial jurisdiction of Sessions Courts

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(1) The Yang di-Pertuan Agong may, by order, constitute

so many Sessions Courts as he may think fit and shall
have power, if he thinks fit, to assign local limits of
jurisdiction thereto.

(2) Subject to this Act or any other written law, a

Sessions Court shall have jurisdiction to hear and
determine any civil or criminal cause or matter
arising within the local limits of jurisdiction
assigned to it under this section, or, if no such local
limits have been assigned, arising in any part of
Peninsular Malaysia.

(3) Each Sessions Court shall be presided over by a

Sessions Court Judge appointed by the Yang di-
Pertuan Agong on the recommendation of the Chief
Judge.

(4) Sessions Courts shall ordinarily be held at such

places as the Chief Judge may direct, but should
necessity arise they may also be held at any other
place within the limits of their jurisdiction.

[40] Section 59 of the SCA accords the power to assign local limits
of jurisdiction to the Yang di-Pertuan Agong. So the next
question is has the Yang di-Pertuan Agong done this and if so,
what is the jurisdiction that has been assigned?

[41] The Appellant placed reliance on the case of PP v. Segaran a/l S

Mathavan [2009] 9 MLJ 597, where Yeoh Wee Siam JC (as Her
Ladyship then was), held:

“[16] In support of her reliance on s. 59(2) of the SCA, the

sessions court judge cited the lpoh High Court case of Taman
Rimba (Mentakab) Sdn Bhd v. Sin Yew Poh Tractor Works

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[2002] 5 MLJ 321, [2002] 2 CLJ 112 where James Foong J (as
he then was) in referring to s. 59(2) of the SCA stated:

‘Local limits’ ... is set out in the High Court Practice Direction
4 of 1993. There, the then Chief Justice of Malaya assigned to
the lpoh Sessions Court territorial jurisdictional areas of:
lpoh, Batu Gajah, Parit, Kampar, Sitiawan, Lumut, and Pantai
Remis.

These areas designated to the lpoh Sessions Court are certainly

not the place where the cause or matter in this action arose. It
was either Mentakab or Kuala Lumpur. Unlike the High Court
of Malaya sitting in various capital cities and towns in
Peninsular Malaysia, the Sessions Court throughout the
country do not enjoy concurrent territorial jurisdiction of each
other. Though they are set up by His Majesty, the Yang Di-
Pertuan Agong under s. 59(1) of the Subordinate Courts Act,
territorial jurisdictional boundaries are allocated to them. This
is declared in s. 59(2) of the Subordinate Courts Act which says
that the sessions court shall ‘to hear and determine any civil or
criminal cause or matter arising within the local limits or
jurisdiction assigned to it’. (Emphasis added). The High Court
does not have such jurisdiction except that it cannot go beyond
the shores of the Malay Peninsular, vice versa with the High
Court of Sabah and Sarawak whose territorial jurisdictional
limits are confined to the two states in East Malaysia. But within
each of the High Courts’ territorial limits, a High Court judge
has concurrent and co-ordinate jurisdiction to try cases as his
counterpart in another city or town where there is a High Court.
The rational for this is, as explained by Justice Lim Beng Choon
in Sova Sdn Bhd v. Kasih Sayang Realty Sdn Bhd [1988] 2 MLJ
268 at p 270, the two respective High Courts have many
branches. Thus a judge sitting in the High Court of Malaya at
Kuala Lumpur has the same power and right to try a matter or

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cause arising in another part of West Malaysia. This set up is

therefore different from the subordinate courts. The subordinate
courts have the restriction of local limits assigned to them.
When a cause or matter arose outside its local limits then it has
no jurisdiction to hear the substantive matter.

[17] With utmost respect to James Foong J (as he then was)

and the Sessions Court judge, / am of the humble view that s.
59(2 must be read first of all with s. 59(1) of the SCA. Under s.
59(1) of the SCA, it is only the Yang di-Pertuan Agong who
may by order constitute the sessions courts as he thinks fit, and
he shall also have the power to assign the local limits of
jurisdiction of the sessions courts. From a search done by my
senior assistant registrar, it appears that so far, the Yang di-
Pertuan Agong has not made any order under s. 59(1) of the
SCA, that has been gazetted, to assign the local limits of
jurisdiction of each sessions court. That being the case,
administratively, the sessions courts have been guided by the
High Court Practice Directions No 2 of 1993 and 4 of 1993
regarding their local limits of jurisdiction. In my opinion, the
practice directions serve very well for the day-to-day
registration and hearing of cases in the various sessions courts
listed in the two practice directions. However, when the vital
issue arises, such as in this application before me, as to
whether the PJ Sessions Court, under the Shah Alam Sessions
Court, and the KL Sessions already have local limits of
jurisdiction assigned to them by order made by the Yang di-
Pertuan Agong under s. 59(1) of the SCA, then the answer is in
the negative.

[18] Under s. 59(2) of the SCA, if no local limits of

jurisdiction have been assigned to a sessions court, then the
sessions court has jurisdiction to hear and determine any
cause or matter arising in any part of the local jurisdiction of

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the respective High Court, which means that the sessions court
has the same local jurisdiction of a High Court.

[19] Since that is the true legal position, then following the
same principle as enunciated in the relevant parts of the
decisions in Taman Rimba Mentakab Sdn Bhd v. Sin Yew Poh
Tractors Works and Soya Sdn Bhd v. Kasih Sayang Realty Sdn
Bhd regarding the local jurisdiction of a High Court, the
sessions court can sit anywhere, at any branch in Peninsular
Malaysia or West Malaysia. In the context of the present case,
this means that pursuant to s. 104 of the SCA, and reading
together also with its proviso, the PJ Sessions Court can
determine whether to transfer the PJ Sessions Court case to the
KL Sessions Court since the KL Sessions Court does have
jurisdiction to hear such case transferred, and the transfer
would not be deemed to be conferring jurisdiction on the KL
Sessions Court in contravention of the same proviso”. (Emphasis
added)

[42] The First Respondent on the other hand relied on the case of
Taman Rimba (Mentakab) Sdn Bhd v. Sin Yew Poh Tractor
Works [2002] 2 CLJ 112 where James Foong J (as His Lordship
then was) held as follows:

“These areas designated to the Ipoh Sessions Court are

certainly not the place where the cause or matter in this action
arose. It was in either Mentakab or Kuala Lumpur. Unlike the
High Court of Malaya sitting in various capital cities and
towns in Peninsular Malaysia, the Sessions Courts throughout
the country do not enjoy concurrent territorial jurisdiction of
each other. Though they are set up by His Majesty, the Yang
di-Pertuan Agong under s. 59(1) of the Subordinate Courts
Act, territorial jurisdictional boundaries are allocated to them.
This is declared in s. 59(2) of the Subordinate Courts Act
which says that the Sessions Court shall “to hear and

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determine any civil or criminal cause or matter arising within

the local limits of jurisdiction assigned to it” (emphasis added).
The High Court of Malaya does not have such restriction except
that it cannot go beyond the shores of the Malay Peninsular,
vice versa with the High Court of Sabah & Sarawak whose
territorial jurisdictional limits are confined to the two states in
East Malaysia. But within each of the High Courts’ territorial
limits, a High Court judge has concurrent and co-ordinate
jurisdiction to try cases as his counter-part in another city or
town where there is a High Court. The rational for this is, as
explained by Justice Lim Beng Choon in Sova Sdn Bhd v. Kasih
Sayang Realty Sdn Bhd [1988] 2 MLJ 268 at p. 270, the two
respective High Courts have many branches. Thus a judge
sitting in the High Court of Malaya at Kuala Lumpur has the
same power and right to try a matter or cause arising in
another part of West Malaysia. This set up is therefore
different from the subordinate courts. The subordinate courts
have the restriction of local limits of jurisdiction assigned to
them. When a cause on matter arose outside its local limits
then it has no jurisdiction to hear the substantive matter.

By these reasoning, I agree with the defendant’s submission that

the Ipoh Sessions Court has no territorial jurisdiction to hear
the action.” (Emphasis added)

[43] There are thus two conflicting High Court decisions in respect
of this matter. In PP v. Segaran a/l S Mathavan, the High Court
there disagreed with the decision of the High Court in the
Taman Rimba (Mentakab) Sdn Bhd.

[44] In the case of PP v. Segaran a/l S Mathavan (supra) it was held

that administratively, the sessions courts have been guided by
the High Court Practice Directions No 2 of 1993 and 4 of 1993
regarding their local limits of jurisdiction.

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[45] The main reason given by the learned judge in Segaran a/l S
Mathavan’s case for holding that the Sessions Court has the
same local jurisdiction of a High Court is that the Yang di-
Pertuan Agong has not assigned the local limits of jurisdiction
of the PJ Sessions Court, the Shah Alam Sessions Court, and the
KL Sessions under s. 59(1) of the SCA.

[46] Based on this, it was held that the Sessions Court has the same
local jurisdiction of a High Court.

[47] However, learned counsel for the First Respondent submitted

that Section 59 of the SCA (reproduced above) which accords
the power to assign local limits of jurisdiction to the Yang di-
Pertuan Agong has already been carried out.

[48] It was contended by learned counsel for the First Respondent

that the local limits of jurisdiction have been assigned and
referred to the Federal Subsidiary Legislation 1948 which reads:

“In exercise of the powers conferred upon him by Sections 59

and 76 of the Courts Ordinance 1948, the High Commissioner
hereby makes the following Order:

3. The Sessions Court in the first column of the First

Schedule hereto are hereby constituted and local limits of
jurisdiction as set out in the second column of the said
schedule hereto are assigned to each.”

[49] The said First Schedule (paragraph 2) of the said legislation

reads:

“Sessions Court Local Limits of Jurisdiction

(1) Sessions Courts

The Sessions Court of the Settlement of Penang and

Province Wellesley

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(2) Local limits of jurisdiction

The territorial boundaries of the Settlement of Penang.”

[50] Learned counsel for the First Respondent submitted that after
Malaysia gained independence, the word “High Commissioner”
has been substituted with the words “Yang Di-Pertuan Agong”.

[51] This was by virtue of “His Majesty’s Government Gazette”

published on 19 th June 1958, Legislative Supplement No. 26 and
the relevant portions are reproduced as follows:

“2. The modification specified in the second column of the

Schedule, being modifications which appear to the Yang di-
Pertuan Agong necessary or expedient for the purpose of
bringing the provisions of the Courts Ordinance, 1948, into
accord with the provisions of the Constitution, shall be made in
the provisions of the said Ordinance specified in the first
column of the said Schedule.

SCHEDULE

59 (1), 59 (3), 76 (1) & 77 For the words “High

Commissioner” wherever they occur
substitute the words “Yang di-
Pertuan Agong”

[52] So if one were to substitute the “High Commissioner” with

“Yang Di-Pertuan Agong”, the current local limits of
jurisdiction for the Sessions Court in Penang and Province
Wellesley, now known as Butterworth, are the territorial
boundaries of Penang.

[53] The result is that the KL court cases cannot be transferred to

Butterworth because that would exceed the territorial boundaries
of Penang.

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[54] It is most unfortunate that these provisions were not made

available to the learned J.C (as she then was) in PP v. Segaran
a/l S Mathavan (supra).

[55] I am therefore in agreement with the decision in Taman Rimba

(Mentakab) Sdn Bhd v. Sin Yew Poh Tractor Works (supra)
which held that the subordinate courts have the restriction of
local limits of jurisdiction assigned to them and when a cause on
matter arises outside its local limits then it has no jurisdiction to
hear the substantive matter.

D) DECISION

[56] The learned Sessions Court judge had therefore not erred when
she dismissed the Appellants application for both a joint trial
and for a transfer of the KL cases to Butterworth. There was no
appealable error.

[57] In the premises, the Appellant’s appeal is dismissed.

Dated: 17 MAY 2021

(COLLIN LAWRENCE SEQUERAH )

Judge
High Court of Malaya
Kuala Lumpur
COUNSEL:

For the appellants - Nurshafini Mustafha & Natrah Fareha Rahmat,

Deputy Public Prosecutors; Attorney’s General Chambers

For the 1 st respondents - Mardhiyah Mohamed Sirajkumar & Wan

Azwan Aiman; M/s Shafee & Co

For the 2 n d respondent - Nurul Huda Rizali; M/s Haniff Khatri & Co

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