TUTORIAL 2:

Topic 2 (Criminal Courts)

QUESTION 1

On the morning of 24 July 2016, at about 12.20 a.m. Draco Malfroy and Viktor Krum broke
into a Seven Ten Store at Jalan Baru 5, Taman Samarinda in the district of Alor Gajah, Melaka.
The two men fled with a white Myvi bearing registration number MY888.

At Jalan Ayer Keroh, Melaka, Sergeant Remus and Corporal Wesley were on patrol. They saw
a car which matched the registration number. Sergeant Remus followed the car and tried to
overtake it. The car made a sudden turn and stopped nearby the road. Two men bolted out of
the car and were chased by Sergeant Remus and Corporal Wesley. However, they only
managed to apprehend one person - Draco Malfroy.

Draco Malfroy was charged at the Sessions Court at Alor Gajah under s 392 read with s 397 of
the Penal Code for committing robbery.

Discuss whether the said Sessions Court has the local and original jurisdiction to hear the case.
(12 marks)
Topic 2 : determine what is the jurisdiction of the case

Which court is this from ?

- Jurisdiction – power / place
- Local (which state / district)
- Identify the provisions of the law.
- 121, section 9 = local limits

Break into 2 – local case? Or which court? Is it correct for him to charge in the sessions court.
Local limit – district of Alor Gajah

Applying Section 121 , 9 – since it is committed in Alor Gajah, court of Alor Gajah will have
the jurisdiction to hear the case as it was committed within its local limits of jurisdiction.

Issue 2 : whether the sessions court at Alor Gajah has the original jurisdiction to hear the case?
Section 392 PC + First class schedule (punishment)
Section 85 Subordinate Court Act (covers section 392)
Magistrate court has the jurisdiction to hear the case.

Suitable to be tried at the MC or the SC ? the Sessions Court. (Nadarajah case – provided
that the section 85 of SCA does not oust the jurisdiction to try all the offences other than offences
punishable with death under Section SCA + read case of Tengku Abdul Muiz.
QUESTION 2

A gang of robbers consisting of Ahmad aged 21, Maniam aged 22 and Leong aged 17 had
broken into a factory in Segamat, Johor. They then absconded with the stolen goods to
Sungai Petani, Kedah. They were caught by the police with the stolen goods in Sungai Petani.
The police proposed to charge all three (3) of them for the offence of house breaking by
night in order to commit theft and dishonestly retaining stolen property.

Advise the police on the appropriate place and Court to charge all three (3) of them,
namely Ahmad, Maniam, and Leong for the said two (2) offences.

(12 marks)

Topic : 2- courts jurisdiction

- Ori jurisdiction for court
- Local jurisdiction for case

Broken into factory – Segamat, Johor

Absconded the stolen goods – Sungai Petani, Kedah.
Leong’s age : 17

punishment
S457- 14 yrs
S411- 5 yrs

Maniam, Ahmad and Leong has broken into a factory in Segamat, Johor. According to Section 378
of the PC, whoever intending to take dishonestly any movable property out of the possession of
any person without that person’s consent, moves that property in order to such taking, is said to
commit theft. According to Section 379 of the PC, whoever commits theft shall be punished with
imprisonment for a term which may extend to seven years or with fine or with both, and for a
second or subsequent offence shall be punished with imprisonment and shall also be liable to fine
or to whipping.

Magistrates court suitable to hear this case- less than 5 yrs, if theft then can be extended to 14yrs.
85 of subordinate courts act- magistrate can hear this case.
Leong cannot be heard in first class magistrates court. He must be tried in children’s court.
11(5) minor should be tried in children’s court.
83(4) because leong is charged jointly w ahmad and maniam, therefore, all 3 must be charged at
the district court.

First issue : Whether the Magistrate Court at Segamat, Johor has the original jurisdiction to
hear the case for Maniam and Leong.

According to Section 76(2) SCA, the court has the jurisdiction to hear and determine any criminal
case or matter arising within the local limits of the jurisdiction assigned to it.
According to Article 145 FC, the AG have the power to institute conduct or discontinue any
criminal proceedings.

According to Section 85 of SCA, the court has the jurisdiction to try offences with less than 10
years imprisonment or punishable with fine only. There are a few exceptions to this. Firstly, under
Section 85 of SCA, the court has the try offences under Section 392 PC which is robbery and
Section 457 PC which is house breaking punishable maximum 14 years.

Besides that, Section 39A(2) DDA, Section 379 PC which is second offence of theft, punishment
including whipping because of Section 85 read with Section 87. In the case of PP v Govindan,
although the accused had 11 previous convictions, the magistrate only sentenced him to 3 years
imprisonment for theft. On appeal, the judge invoked Section 87(2) as the accused deserved a
heavier punishment, punishment is increased to 7 years imprisonment.

Applying the facts to the current case, Ahmad, Maniam and Leong has committed an offense in
Segamat, Johor. The first class Magistrate court at Segamat will have the local jurisdiction to hear
the case as it was committed within its local limits of jurisdiction. However, as there is an
exception to this general as provided under S. 124(3) of the CPC. According to this provision, the
police can choose to charge the offence of stealing anything at a court within the local limits of
whose jurisdiction such thing was stolen; or such thing was possessed by the thief; or such thing
was possessed by any person who receives/ retains the same knowing/ having reason to believe it
to be stolen. Thus, Ahmad, Maniam, and Leong can also be charged at First Class Magistrate Court
at Sg Petani.

Second issue : whether the appropriate place to charge Ahmad, Maniam and Leong and
which court has the original jurisdiction to try the case.

The punishment for house breaking by night in order to commit theft under Section 457 of PC is
14 years imprisonment. Whereas under Section 411 PC, the punishment for the offence for
dishonesty retaining stolen property is 5 years imprisonment. The offences were charge together
pursuant to Section 34 of PC which refers to the common intention by Ahmad, Maniam and
Leong.

S. 85 of Subordinate Court Act 1948 governs the trial jurisdiction of the First-Class Magistrate
Court. The trial jurisdiction is all cases where the maximum sentence does not exceed 10 years
imprisonment/with fine only.

S. 2 of the Child Act 2001 defines child as a person under the age of eighteen years old.

S. 11(5) of the Child Act 2001 states that the Courts For Children shall have jurisdiction to hear
all offences except offences punishable with death.

S. 83(4) of Child Act 2001 states that a charge made jointly against a child and a person who has
attained the age of 18 years shall be heard by a Court other than a Court For Children.

Applying the facts to the case, it can be said that a First class Magistrate shall have jurisdiction to
try offences under Section 457 of the PC in pursuance to Section 85 of the SCA. Here, Ahmad and
Maniam are above 18 years old and both of them committed an offence which is within the
original jurisdiction of the First Class Magistrate Court. As for Leong, who aged 17 years old, is
considered as a child under Section 2 of the Child Act. By applying Section 11(5) of Child Act, a
court of Children will have the jurisdiction to hear the case since it does not involved death
penalty. However, by virtue of Section 83(4) of the Child Act, since Leong will be charged jointly
with Ahmad and Maniam, he shall be charged at the First Class Magistrate Court.
Lecturer’s answer:

Issue: What is the appropriate place and court to charge Ahmad, Maniam and Leong? / which court has
the original jurisdiction to try the case?

The punishment for house breaking by night in order to commit theft under S457 PC is 14 yrs
imprisonment. Whereas under S 411 PC, the punishment for the offence for dishonestly retaining stolen
property is 5 yra imprisonment.

S85 Subordinate Courts Act 1948 provides that a First Class Magistrate shall have jurisdiction to try
offences under S457 of PC.

Ahmad and Maniam are above 18 years old and both of them committed an offence which is within the
original jurisdiction of the 1st class magistrates court.

As for Leong he is 17 years old and considered a child under S2 of the Child Act 2001. Based on S 11(5)
Child Act 2001, a Court for Children will have the jurisdiction to hear the case since it does not involve
death penalty. However, by virtue of S83(4) Child Act 2001, wsince Leong will be charged jointly with
Ahmad and Maniam, he shall be charged at the 1st class magistrates court.

Issue 2: Which 1st Class Magistrates Court has the local jurisdiction to hear the case? 1st class magistrates
court at Segamat or 1st class magistrates court in Sg. Petani?

S121 CPC, laid down the general principle that every offence shall ordinarily be tried by a court within
the local limits of whose jurisdiction it was committed. This is further supported by S9 (a) CPC which
clearly provides the local jurisdiction for a Magistrate to hear offences committed wholly or in part
within its local jurisdiction.

Based on the facts, Ahmad, Maniam, and Leong committed the offence in Segamat, Johor. Applying the
general rule a first class Magistrates Court at Segamat will have the local jurisdiction to hear the case as
it was committed within its local limits of jurisdiction. However, there is an exception to this general rule
as provided under S 124(3) of CPC. According to this provision, the police can choose to charge the
offence of stealing anything at
1) A court within the local limits of whose jurisdiction such thing was stolen; or
2) A court within the local limits of whose jurisdiction such thing was possessed by the thief; or
3) A court within the local limits of whose jurisdiction such thing was possessed by any person who
receives/ retains the same knowing/ having reason to believe it to be stolen.
Hence, Ahmad, Maniam and Leonf can also be charged at the 1st class Magistrates Court at Sg. Petani.
QUESTION 3

Man Kaya is a rich businessman. He is a known corporate-magnate in oil and gas

industry. On 17 July 2016, Man Kaya was kidnapped near his office at Jalan Besar,
Kuala Lumpur. He was later taken to a house in Seremban, Negeri Sembilan. He was
confined in that house as the kidnappers worked on the ransom demand from his family
in Kuala Lumpur. On 24 July 2016, his dead body was discovered floating in a river in
Sungai Klebang, Melaka. A, B and C were arrested on 27 July 2016 at three (3) different
parts of the country. A was arrested in Kota Bharu, Kelantan, B was arrested in Nilai,
Negeri Sembilan and C was arrested in Ampang, Selangor.

(i) Can A be charged and tried for the murder of Man Kaya at the H igh Court in
Kota Bharu, Kelantan? Give reasons for your answer.

- Locality must comply w crimi procedure

- Must not be in the convieniece of the accused, must be convenience of witness.
(5 marks)
Man – kidnapped in Jalan Besar, KL, taken to Seremban, NS, dead body found in Sungai
Klebang, MLK.
A = Kota Bharu, Kelantan
B = Nilai, NS
C = Ampang, Selangor

A, B and C can be charged under Section 302 of PC and Section 34 of PC which both carries
death penalty and Section 34 PC, which is the common intention. Hence, it falls within a High
Court jurisdiction (original jurisdiction) as provided under Section 22(1)(a) of the Courts of
Judicature Act 1964.

Since this case involved High Court, Section 3 of the CJA provides that the local jurisdiction for
the HC in Malaya covers the whole Peninsular Malaysia. In the case of Lt Kdr Balakrishnan v
Menteri Pertahanan Malaysia, it was held that the word ‘local jurisdiction’ in para (a) should not
be interpreted as creating separate jurisdiction according to the States listed in the said paragraph.

Section 121 CPC, every offence shall ordinarily be inquired into and tried by a Court within the
local limits of whose jurisdiction it was committed.

S 125(a) CPC – If when it is uncertain in which of several local areas an offence was committed,
it may be inquired into and tried by a Court having jurisdiction over any of such local areas.

Applying s.125(a) CPC, the offence may be tried by High Court at Seremban since the victim was
taken to a house in Seremban and confined in that house, he might have been murdered there and
High Court at Melaka since the victim’s body was found floating at Klebang, Melaka, it is also
possible he was murdered at Melaka.
 (ii) Can B be charged and tried for the kidnapping of Man Kaya at the High
Court in Seremban, Negeri Sembilan? Give reasons for your answer.
(5 marks)
A, B and C can be charged under S 364 of the PC which carries death penalty. Hence, this
case falls within a High Court original jurisdiction as provided by S22(1)(a) CJA.

Since this case involved a High Court, S3 CJA provides that oocal jurisdiction for the High
Court in Malaya covers the whole Peninsular Malaysia. In Lt Kdr Balakrishnan v Menteri
Pertahana Malaysia, it was held that the word ‘local jurisdiction’ in para (a) S3 CJA 1964
should not be interpreted as creating separate jurisdiction according to the States listed in
the said paragraph. Hence, technically all HC in peninsular Malaysia has the jurisdicition to
hear this case, and this includes the High Court at Kota Bahru.

However, for practical and convenient purposes, the general rule under S121 CPC provides
that the offence should be charged by a court where the offence was committed. Since the
offence is a continuing one, applying S125(C) CPC, the offence may be tried by
1) High court at Kuala Lumpur because the victim was kidnapped near his office at Jalan
Besar KL; or
2) High court at Seremban since the victim was taken to a house in Seremban and confined
on that house.