Arrest

a. How is arrest effected

i. s.15(1) provides that a person may be arrested in 3 modes: -

- Actually touching the body of the person sought to be arrested; or
- Actually con ining the body of the person sought to be arrested; or
- Where the person sought to be arrested submits to custody by words or action.
s.15(2)- police may forcibly arrest the snatch thief.

ii. According to Halsbury’s Laws of England which is similar to s.15(1), an arrest consists in
the seizure or touching of a person’s body with a view to his restraint; words may
alternatively amount to an arrest if in the circumstances of the case, they are calculated to
bring, and do bring, to a person’s notice that he is under compulsion and he thereafter
submits to the compulsion.

iii. in Shaaban & Ors v Chong Fook Kam & Anor, Lord Devlin opined that an arrest does not
occur when a police of icer stops someone to merely to make an inquiry and stated that “an
arrest occurs when a police of icer states in terms that he is arresting or when he uses force
to restrain the individual concerned. It occurs when by words or conduct he makes it clear
that he will, if necessary, use force to prevent the individual from going where he may want
to go.’

From the case of Shaaban, 3 propositions by Lord Devlin as to what constitutes a valid
arrest are: -
- A police of icer state in terms that he is arresting; or
- A police of icer uses force to restrain the person sought to be arrested; or
- where a police of icer 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.

iv. Cases
- Jayaraman, it was held that arrest did not occur when a police corporal stopped an
individual to make inquiries.
- Rosyatimah, it was held that a person is under arrest if he is in a state of being watched or
guarded to prevent escape or implied that his liberty is restrained.
- Tan Chye Joo, where in the accused was asked not to leave during the search of his house,
drugs were found in a biscuit tin. The Court held although speci ically been told not to leave,
it does not mean that the accused is under arrest as the arrest only took place after the
discovery of the drugs.
- PP v Johari Abdul Kadir, the court held that the accused was under arrest at that time as
his liberty has been curtailed as the police of icer by his conduct clearly showed that force
will be used if necessary to restrain his liberty.

b. Right of Arrested Person

1. Be informed of his ground of arrest

- upon being arrested, X has to be informed as soon as may be of the grounds of his arrest as
provided for in Art.5(3) Federal Constitution and the new s.28A.
- Christie v Letchnisky, the accused must be informed of the true grounds of his arrest but
he need not be informed if the accused should know the general nature of the alleged
offence, or if it is not practical to do so. The Court also held in that case that it is not
necessary for technical or precise words to be used in order to inform the accused.
- Christie was referred to and approved by the Federal Court in Abdul Rahman v Tan Jo
Koh.

2. Legal Representation
- X is also entitled to legal representation as provided under Art.5(3) FC and s.28A(2)(b)
CPC, as well as the right to inform a relative or friend of his whereabouts as provided in
s.28A(2)(a).
- However, s.28A(1) and (2) must be read with s.28A(8) where it provides that if the police
of icer reasonably believes that the requirements is likely to result in an accomplice of the
person arrested taking steps to avoid apprehension or the concealment, fabrication or
f
f
f
f
f
f
f
f
f
 destruction of evidence or the intimidation of a witness, such requirements in s.28A(1) and
(2) need not be complied.
- s.28A(8)(b) also provides that the requirements need not be satis ied if the recording of
any statement is so urgent that it should not be delayed. s.28A(8) shall only apply upon
authorization by a police of icer not below the rank of Deputy Superintendent of Police.

3. Brought to Magistrate without unreasonable delay

- It should be noted that according to Art.5(4) FC and s.28, X should be brought to a
Magistrate without unreasonable delay upon being arrested and shall not be detained for
more than 24 hours after his arrest without a remand order of a Magistrate.

4. Remand Order
- If investigation cannot be completed within 24 hours, reference should be made to s.117
where the investigating of icer can apply for a remand order from the Magistrate. The
duration of the remand order granted by the Magistrate will depend on the term of
imprisonment of the offence charged.
- if the offence carries a term of imprisonment of less than 14 years, the duration the remand
shall not be more than 4 days on the irst application and not more than 3 days on the
second application.
- if the offence carries the term of imprisonment of more than 14 years the duration of
remand shall not be more than 7 days on the irst application and not more than 7 days on
the second application.
- the magistrate when considering the application for remand will require the production of
a copy of the investigation diary as provided in s.119 and such requirement is mandatory as
seen in the case of Audrey Keong and Re The Detention of Sivarasa.

5. Remain Silent
- X also has the right to remain silent when being examined by police if the answer to any
question that have the tendency to expose him to a criminal charge or penalty or forfeiture
as pursuant to the proviso in s.112(2). If X is being remanded, Rule 20 of the Lock Up Rules
1953 provides that X cannot be examined from 6pm to 6am and must remain in the lock up
for rest.

6. Apply for Bail

- Justify whether the offence is bailable or non-bailable, s.387/388
- The right of bail under s.387 is subject to a remand order under s.117 as was held in Maja
anak Kus, hence even if X managed to apply to be released on bail, any remand order
granted to detain X would take precedent over the bail.

c. Remand Order

- Where investigation cannot be completed within 24 hours, and Investigating Of icer wishes
to detain X in order to complete the investigation.
- Reference should be made to s.117 where the investigating of icer can apply for a remand
order from the Magistrate. The duration of the remand order granted by the Magistrate will
depend on the term of imprisonment of the offence charged.
- If the offence carries a term of imprisonment of less than 14 years, the duration the remand
shall not be more than 4 days on the irst application and not more than 3 days on the
second application. If the offence carries the term of imprisonment of more than 14 years
the duration of remand shall not be more than 7 days on the irst application and not more
than 7 days on the second application.
- During the remand, the accused is entitled to legal representation pursuant to Art.5 of the
Federal Constitution as held in Saul Hamid v PP and Ooi Ah Phua v OCCI Kedah/Perlis.
- it must be noted that s.117 requires the police to transmit to the Magistrate a copy of the
entries of the diary and shall at the same time produce the suspect to the Magistrate. The
diary is prescribed under s.119.
- The section provides details such as time and date of investigation which the Investigating
Of icer, time in which he began and close the investigation and places visited by him. Failure
to produce the investigation diary will be fatal to the remand application, as the magistrate
will not have the necessary material to act upon to decide whether to order further remand,
as was in Re The Detention of Sivarasa.
- in the case of Audrey Keong, the CoA held that it is mandatory for the police to produce a
copy of the diary as pursuant to s.119. The details of such diary would provide a true picture
f
f
f
f
f
f
f
f
f
f
 of the proceedings in the investigation in compliance with the section. At the trial, the
accused cannot inspect such diary.
- Further in Audrey Keong, it was clearly stipulated that s.117 is only used for potential
suspects and cannot be used to compel witnesses or potential witnesses to come forward to
assist investigation.
- What the magistrate has to decide at this stage is whether there are grounds believing that
the accusation or information is well founded.
- Similar view was taken in the case of Re The Detention of Sivarasa as to the importance of
s.117 where the court stated that the Magistrate is under the duty to give reasons when
making a remand order.
- In the case of Ramli b Salleh v Inspector Yahya b Hashim, the court held that s.117 is an
exception of s.28 to enable the police to complete the investigation.
- The right of bail under s.387 is subject to a remand order under s.117 as was held in Maja
anak Kus, hence even if X managed to apply to be released on bail, any remand order
granted to detain X would take precedent over the bail
- the Magistrate’s power under s.117 is either to detain the accused or refuse detention of
the accused. If the detention is refused, the police have no choice but to release the accused.
The release of the accused under s.117 could not be equated as an order to acquit and
discharge the accused from criminal accusation.

d. Arrest by Private Person

- Reference must be made to s.27 which provides 3 criteria where such an arrest may be
made, viz., a citizen may arrest any person who in his view, commits a non-bailable and
seizable offence.
- The Indian cases Durga Singh and Kartar Singh as well as the Singapore case Metro
(Golden Miles) Pte Ltd interpreted ‘in his view’ strictly to mean that the offence must be
committed within the sight of the arresting private person.
- however, in Sam Hong Choy, the court adopted a liberal interpretation and held that ‘in his
view’ means in his presence or within his sight. The court also held that the phrase covers
situation where although the private person did not witness the offence, he was nevertheless
certain that the person arrested was the offender as the latter was in such close proximity to
the scene of the crime.
- Once a private person has arrested a person, s.27 provides that the private citizen shall
without unnecessary delay hand over the arrested person to the nearest police station. In
John Lewis & Co ltd v Tims, the respondent was detained by the store detectives while the
police were being called. The court held that there was no unnecessary delay as the
respondent was given opportunity to answer the allegation of theft.
- Reference must be made to 3rd column of the 1st Schedule to the CPC. A seizable offence is
an offence in which a police of icer ordinarily arrests without a warrant according to the
third column of the irst schedule of the CPC.
- Offences other than those in the PC are bailable and non-seizable in nature.

e. Arrest by Police Of icer without warrant

Key Take
i. s.23- ‘complaint’, ‘credible information’, ‘reasonable suspicion’
ii. s.24- to ascertain the name of an individual

- The general rule laid down in s.2 CPC is that police can only arrest without warrant for
seizable offence. i.e. offences which carries more than 3 years imprisonment.
- s.23 empowers a police to arrest without warrant for seizable offences. A police of icer is
de ined as any member of the Royal Malaysian Police and includes constable up to IGP. The
situations in which any police of icer may arrest without an order from a Magistrate and
without a warrant are given in s.23(1)(a) to (k).
-s.23(1)(a) is most often resorted to. s.23(1)(a) provides that, where any seizable offence
has been committed anywhere in Malaysia, any police of icer or penghulu may arrest
without a warrant any person:-
i. who has been concerned in any such offence; or
ii. against whom a reasonable complaint has been made; or
iii. against whom credible information has been received; or
iv. against whom a reasonable suspicion exists.

Thus, it is submitted that “complaint” in s.23 has a wider meaning and includes complaints
to the magistrate or to the police.
f
f
f
f
f
f
f
 - in Tan Kay Teck v AG, it was held that an objective test is to be used to determine
whether a complaint is reasonable or not.
“Credible information” means information that is reliable or can be believed. A bare assertion
without anything more cannot amount to credible information.
- in Hashim bin Saud v Yahaya bin Hashim, a report was lodged that an electric
generator was stolen. The plaintiff was arrested without a warrant based on the
information given by an informant for a stolen cement mixer. The police obtained a
remand order under s.117 for further police investigation. The plaintiff brought an
action against the defendants for wrongful detention.
- Harun J held that information against the plaintiff was credible in that in previous cases,
information given by the informant was proved to be reliable as it led to arrests,
prosecution and conviction. Thus, the arrest of the plaintiff without warrant was lawful
not only on credible information but also on reasonable suspicion and the test for
reasonable suspicion in Shaaban was satis ied.

What amounts to “reasonable suspicion” can be seen in the cases below:

- in Tan Eng Hoe v AG, the applicant itted the description of an offender in a cheating
case. The applicant was mistakenly arrested. After further investigation, the police found
that the applicant was not the real offender. The applicant sued for wrongful arrest.
Whitley J held that a reasonable man would have suspected the applicant of being the
offender in the circumstances as both stayed in the same hotel, were of about the same
age, from Malacca, names sounded familiar, wore similar clothes and carried a black bag.
Thus, the police was justi ied in arresting him without warrant.
- s.24 provides that a police of icer may arrest without warrant any person who commits or
is accused of committing a non-seizable offence in his presence and refuses to give his name
and address or if given, the police of icer believe it to be false. The purpose of arrest is to
ascertain his true name and residence and such a person must be brought before a
Magistrate within 24 hours. However, if his true name and address is ascertained before the
24 hours, such a person must be released on his executing a bond for his appearance before
a Magistrate if so required.

f. Power of arrest by Magistrate

s.30 provides that a Magistrate may himself arrest or authorize any person to arrest the
offender if an offence is committed in the presence of the Magistrate. s.31 also provides that
a Magistrate may at any time arrest or authorize the arrest in his presence within the local
limits of his jurisdiction of any person for whose arrest he is competent at the time and in
the circumstances to issue a warrant. It must be noted that if a Magistrate arresting the
person under the power given should not try the case himself and that the arrested person
must be produced to another competent Magistrate as held in Hariharanand v The Jailor.

g. Summon vs. Warrant

- s.2(1) de ines ‘summons case’ as a case relating to an offence and not being a warrant case.
Whereas a ‘warrant case’ is a case relating to an offence punishable with death or with
imprisonment for a term exceeding 6 months.
-Pursuant to s.47, a warrant can only be issued in lieu of a summon if:
(a) the court believes that the accused may abscond or disobey the summons or
(b) the accused fails to appear in court
- Reference is made to s.47(b) which further empowers the court to issue a warrant in
circumstances where service of the summons is proved to have been effected but the
offender fails to appear and no reasonable excuse is offered or afforded for his absence in
which event the court may issue a warrant for the appearance of the offender.
- s.2(1) includes any court which exercises criminal jurisdiction. Where a warrant is issued
due to the accused’s failure to appear, the warrant may be quashed on proof that the
summons were in fact not served or were not served in time. Further, if the summons had
been served but was never brought to the accused’s knowledge, the warrant may be
quashed.

h. Rights of Accused Person

- an accused person has a right to give sworn evidence in the witness box, to give unsworn
statement from the dock or remain silent as provided in s.173(ha).
- s.257 CPC also applicable for an accused to remain silent.
-PP v Lee Eng Hui, they have the right to get a copy of the charge sheet.
f
f
f
f
f
f
- PP v Haji Abdul Ghani, they have the right to obtain their own statement and also rights
for document under s.51A.
- Right for a fair trial.
- Right to a lawyer.

I. Person illegally detained

- Person illegally detained can bring a civil suit to sue for damages for the tort of assault,
trespass to person and false imprisonment as was the case in Tan Kay Teck, where the court
awarded damages to a constructor and his wife for unlawful arrest and detention.
 Bail
a. Amount of Bond

In deciding whether the amount of bond imposed to the accused for the bail is justi ied or not,
we should look at the type and nature of the offence and the background of the accused person.
Normally high amounts of bonds are imposed on the accused persons who are charged with
money related offences and those accusations are based on high amounts of monitory values.
One commons offence is Criminal Breach of Trust. In the case of Soo Shiok Liong v PP, in the
trial court the bail was granted amounting RM 1 million with two sureties. The accused was
charged with 13 counts of CBT offences which involves RM 5 million. The accused appealed in
the high court and high court held that the amount was too excessive and reduced to RM
600,000 with two sureties and ordered to surrender his international passport. In the case of
Zulki lee bin Hj Hasssan v PP, the accused appealed against the bail amount which is RM 1
million with two sureties. He was charged for 7 counts of CBT to the total of RM 6.7 million. The
high court held that the amount was excessive and punitive and reduced to RM 200,000 with
two sureties. Further the court order to surrender him international passport. Based on the
above discussions, the accused in the present case is being set on bail with an unreasonable and
excessive amount. A bail amounting RM 70,000 for 14 counts of defamation is unjusti iable and
punitive.

b. Discharge as a surety

- relevant section is s.393 CPC

- may at any time apply to court to discharge the bond either wholly or in part so far as relates
to applicant
- Valliami, may apply to discharge himself as bailor either orally or in writing.
- Procedure is by writing of icially to the court and obtaining a date for the said application
where the proceedings will be done in open court, which the court would order accused to
be produced in court, and he will be given an opportunity to ind a new bailor and failure to
do so, accused will be remanded pending trial.
- The court may issue a warrant of arrest to bring the accused released on bail to court
- On the day of proceedings, surety is advised to provide reasons for the discharge and if the
Court is satis ied discharge will be granted.
- Upon discharge being granted by the court, accused will be given an opportunity to ind a
replacement for bailor.
- Once bailor is discharged, the security will be released back to the accused.

c. Locus Standi of Bailor to apply for reduction of bail

- Lee Eng Hoe: where a proposed bailor iled an application under s.389 CPC for an order for
the amount of bail imposed to be reduced on the ground that the amount of bail was
prohibitively high and excessive.
- (cont) the prosecution raised a preliminary objection and argued that a proposed bailor
does not have the locus standi to ile the application. The High Court overruled the objection
and held that Parliament, in enacting s.389 CPC, never imposed any limitation or restriction
as to who may ile an application such as this. Instead, the parliament left the category of
applicants open, in which case the High Court, exercising its jurisdiction there under, is free
to decide on the issue of locus standi.
- The express provision of the 2nd limb of s.389 CPC was therefore construed as including the
applicant, as a proposed bailor, as having the necessary locus standi to ile the application
under s.389 CPC.

d. bailable and non-bailable offence

i. bailable offence
f
f
f
f
f
f
f
f
f
f
f
 - ifth column of the irst schedule of the penal code.
- de ined in s.2 CPC as bailable offence” means an offence shown as bailable in the irst schedule
or which is made bailable by any other law for the time being in force and “non-bailable
offence” means any other offence;
- s.387 CPC: “bail can be granted... above”
- if the offenc-e is a bailable offence and the accused is ready to furnish the bail, the
police (or the court as the case may be) must grant bail. The accused is entitled to bail as of
right.
- Maja Anak Kus, s.117 > s.387 (remand supersedes bail) the accused was charged
under s.324 PC (bailable offence), he was brought before the Magistrate for the purpose of
extending remand under s.117, the accused applied for bail but was refused. HC held that s.117
supersedes s.387 so that the Magistrate was right to refuse bail at the stage of the remand.
Upon expiry of remand, bail will be granted as of right.
- discuss s.117
- discuss s.387(2)

ii. unbailable offence

- no bail would be given and the accused will be remanded during that said period
- unbailable offences are provided for under the respective statutory provisions which
cover the offence, and not under the penal code.
- e.g. s.12 FIPA 1971(all offences under the Act unbailable), Reg. 9 ESCAR 1975 (provides
that security offences under ss.57 & 62 ISA 1950 and offences certi ied by the AG to be security
cases under Reg.2 to be unbailable offences, as re lected in Dato Mokhtar bin Hashim.
- s.41B(1) DDA 1952, offences punishable with death and imprisonment for life are
unbailable in nature. Any offence under this section that is punishable with imprisonment for 5
years or less, if the PP certi ies in writing that it is not in the public interest to grant bail to the
accused person, then it is unbailable. If not, then it is non-bailable.
- if there is express provision for bail in any statutory provision governing a particular
offence, the express provision will apply and will supersede the CPC provision.

iii. non-bailable offence

- Reference is made to the 5th column of the 1st Schedule of the CPC, wherein an offence
of theft under s.379 PC is an offence that is ‘not bailable’, de ined in s.2 CPC as a non-bailable
offence. The word “not bailable” in the 1st Schedule to the CPC means “non-bailable” as in s.388
CPC and not “unbailable” as held by Wan Yahya in Loy Chin Hey v PP.
- Reference must be made to s.388 CPC, in which there are three categories of
non-bailable offences. This refers to a situation where the court or the police of icer in charge of
the police district has the discretion whether or not to grant bail.
- The irst category is provided in s.388(2) CPC, which covers offences punishable
with death or life imprisonment and where there is no reasonable ground to believe that the
offender is guilty of that offence. The discretion is with the court to grant bail, taking into
account the factors laid down in Wee Swee Siang v PP, inter alia, the nature and gravity of the
offence, the danger of the accused absconding, the opportunity for the accused to prepare his
defence, the accused’s character and the danger of tampering with the witness. It should be
noted that the court in Dato’ Seri Anwar Ibrahim af irmed the factors laid down above and
considered other factors such as social status of the accused and his health.
- the second category comes under s.388(1) CPC, covering offences which are
punishable with death or life imprisonment and there is reasonable ground to believe that the
offender is guilty of that offence. In such cases, the court has no discretion to grant bail. This is
in line with the strict interpretation of the said category.
- third category is provided for under the proviso to s.388(1) CPC, covering
offence which are punishable with or life imprisonment and there are reasonable ground to
believe that the offender is guilty of that offence but the accused is a woman, young offender, or
sick or in irm person.
- cases:
i. Balwant singh: where the accused was charged for murder under s.302, the court
nevertheless granted bail since the accused was 80 years old and of ill health.
ii. Che Su bt Daud v PP: A was a mother of 6 children and breast-feeding. Bail was
granted.

e. Varying Bail (s.389)/ appeal against bail (s.394)

- two alternatives, s.389 CPC and s.394 CPC

f
f
f
f
f
f
f
f
f
f
f
f
 - s.389: provides that the amount of bail is to be suf icient to secure the attendance of the
accused; it shall not be excessive. Whether there is an appeal on conviction or not, a Judge
may direct that bail be granted, reduced or varied. The procedure is by originating motion
support by af idavit.
- s.394: provides that a person aggrieved by any order or refusal of any inferior court with
regards to bail may appeal to the High Court, and the High Court may cancel, con irm or
vary the bail granted.
- Sulaiman bin Kadir v PP: it was held that under s.394 the matter of bail is brought before
the High Court by way of notice of appeal and petition of appeal which takes a longer time.
As for s.389, the application is made to the High Court by way of motion supported by
af idavit. this application may be made immediately after refusal to grant bail without giving
notice of appeal to the subordinate court and may be heard on the same day.
- However, under s.389 cannot cancel bail but grant bail if bail has been refused or if bail is
granted, vary the amount. Bail can only be cancelled by invoking s.394 CPC.
- Soo Shiok Liong: the primary consideration in deciding the issue of bail is securing the
attendance of the accused person. Amount of bail shall not be excessive but suf icient to
achieve this purpose.
- Manickam: an excessive bail amount may defeat the purpose of granting bail as the accused
may ind dif iculty in getting a bailor acceptable to the court; the issue arises from the
principle that the accused is presumed to be innocent until proven guilty.
- Zulki lee bin Hassan: the bail sum was reduced from RM 1 Million to RM200,000. The court
held that the requirement as to bail is merely to secure the attendance of the accused and
bail is not intended to be punitive.
- Ramlah binti Selamat: the court saw no reason why the bail amount should be two and a
half times more than the maximum ine that could be imposed for the offence that the
accused was charged with. The court hence reduced the bail amount from RM 750,000 to
RM 25,000.

f. Courts power to grant bail

In Dato Mat Shah lwn Pendakwa Raya: the high court judge has unfettered discretion to grant
bail in all non-bailable offences. Hence only the High Court and not the subordinate court has
discretion to grant bail when the offence is punishable with death or life imprisonment.

g. Application for bail on the same ground

On the second application made to the judge for bail, since it is based on the same
material facts, it would be proper for A to make the application to the High Court instead under
s.389 or s.394 CPC. According to the case of Abdul Rahim bin Haji Ahmad and Mohamed
Razip, when hearing a second or subsequent application, there should be a material change of
circumstances or the emergence of new facts which has since come to light before such
subsequent application will be granted.

h. Purpose of Bail

Manickam v PP
Bail should not be refused lightly as the presumption of innocence leans in favour of the
accused on the question of bail. In addition, the learned judge said that bail is not meant to be
punitive but to ensure that the accused attends the trial in court.

Dato Mat Shah

As a general rule, the court will lean in favour of granting bail unless there are strong grounds
that bail should be refused.

I. When may a warrant of arrest be issued against a person bailed

s.392 provides that if, through mistake, fraud or otherwise, insuf icient sureties have been
accepted, or if they afterwards become insuf icient, the Court admitting him to bail may issue a
warrant of arrest directing that the person released on bail be brought before it, and may order
him to ind suf icient sureties, and on his failing so to do may commit him to prison.

j. Revocation of Bail
f
f
f
f
f
f
f
f
f
f
f
f
f
 Bailable offence

CPC is silent as to the court’s power on revocation of bail for bailable offence as s.388(5)
only allows the court to revoke bail for non-bailable offence.

However, in Wong Kim Woon v PP, where a fundamental bail term has been breached,
the court may revoke bail provided that the accused is irst given an opportunity to be heard as
to why the bail should not be revoked or cancelled. In this case the appellant was not given an
opportunity to be heard. Thus an order was made for the Session Court to hear the appellants
as to why bail should not be cancelled or revoked.

Non-bailable offence

s.388(5) allows the court to revoke any bail granted for non-bailable offences by
causing any person who has been so released to be arrested and may commit him to custody.

Phang Yong Fook v PP, bail was granted by the Session Court but was subsequently
revoked on the ground that the accused was harassing and tampering with witnesses. The
accused appealed to the High Court under s.389 CPC.

Zakaria Yatim J referred to Indian authorities as there were no local authorities on

revocation of bail under s.388(5) and said that:

- Mere statement or allegation of tampering with witnesses without any evidence and
without being proved beyond reasonable doubt cannot be the ground for the bail to be
cancelled. There must be evidence, oral or documentary or af idavit to support to
application for revocation of grant of bail.
- The power to cancel bail must be exercised with care.

k. Forfeiture of Bond

i. The procedure on forfeiture of bond is provided for in s.404 CPC. Whenever a bond for
appearance is taken and such bond is forfeited. The court shall record the grounds of such proof
and may call upon the sureties to show cause why the bond should not be forfeited; he must
show his effort that he has done everything to ensure the attendance of the accused.

ii. the court may call upon the bailor to show cause why he should not be made to pay the
penalty thereof as re lected in Ling Yew Huat. The burden is on the bailor in this matter. The
show cause procedure is laid down in the case of Khor Ewe Suan where the prosecution must
irst prove that the bailor had executed the bond. The sureties must be given the opportunity to
cross-examine all witnesses and to explain why the court should not forfeit the bond. In Chou
Tai Chuan, the irst surety was not informed of hearing date, and thus held that suf icient cause
was shown; whereas the second surety was informed of the hearing date and took steps to
inform the accused but the court held that this was an insuf icient cause and forfeited the bond.

iii. Referring to the above law, it is basically up to the court whether to accept the reasons given
by the bailor. For example, in the case of Datuk Harun bin Haji Idris, the court held that the
accused having gone overseas was not a good reason and the bond was forfeited. However in
Villiamai, the surety tried several times to be discharged but was not given the opportunity to
do so; the court held that suf icient cause was shown and the bond was not forfeited. Besides
that, the use of words ‘whenever it is proved’ in s.404 makes it necessary that the evidence
should be taken and recorded by the Magistrate in the usual way in order to afford a foundation
of his jurisdiction to call on the bailor to show cause. If this is not done, there would be a failure
of jurisdiction, and the defect cannot be cured by the silence or waiver of bailor as was held in
Re Birhan.

l. Bail Pending Appeal against Conviction by Accused

- s.311 provides that appeal does not operate as an automatic stay of execution except for
sentence of whipping; and the trial court or the appellate court has discretion to stay execution
and or grant of bail pending appeal.
f
f
f
f
f
f
f
f
 - s.311 the trial court may grant bail pending appeal against conviction. However, under s.315
only the High Court may grant bail pending appeal against acquittal.
- old approach: Rex v Tan Tee, it was held that the court should allow bail to the accused who
was appealing against conviction unless there were good reasons for not doing so.
- in Re Kwan Wah Yip, the approach is that bail should not be granted unless there are special
reasons. Spenser Wilkinson J set out 6 factors for the court for the court to consider whether to
grant bail:
i. Gravity of offence;
ii. Length of term of imprisonment and length of time for the appeal to be heard;
iii. Whether dif icult points of law are involved;
iv. Whether the accused is the 1st offender;
v. Possibility of the accused being involved again in similar or other offences whilst released;
and
vi. Whether the security imposed will ensure attendance of the accused before the appellate
court.
- Cases
i. Sentence of ine are never stayed. Sin Yong Chang v PP, the accused appealed for a stay of
execution for payment of ine. The High Court held that where the sentence is only a ine, it
must be paid. If it is paid then the accused may be called upon to furnish bail pending his appeal
conviction.
ii. Ganesan v PP, Mohamed Dzaiddin J said that it is well settled law that granting of bail
pending appeal is at the discretion of the subordinate court which has to consider the factors
set out in Re Kwan Wah Yip.
iii. Merit & Ors v PP, the HC held that under s.311, the sentence of whipping shall be stayed
automatically whenever there is an appeal pending.

m. Bail Pending Appeal Against Acquittal by Prosecution

- s.315 provides that if the prosecution iles an appeal against acquittal, then the appellate court
may issue a warrant of arrest. Once the acquitted accused has been arrested and brought before
the appellate court will decide whether to grant bail or not.
- s.311 the trial court may grant bail pending appeal against conviction. However, under s.315
only the High Court may grant bail pending appeal against acquittal.
- in relation to the guiding principles that the court will have to consider when deciding
whether to grant bail pending appeal against acquittal, reference must be made to PP v Nordin
bin Johan where the Federal Court held that despite the fact that the accused was released, an
appeal is a continuation of the same trial and so the accused will still remain as an accused even
during the appeal stage. Since X was not granted bail pending trial, similarly, he should not be
granted bail pending appeal.

-in Ment v PP, the court laid down several factors to be considered when granting bail under
s.315.
i. Discretion in favour of the prosecution should be exercised sparingly and in special
circumstances.
ii. Quantum of the bail should be realistic.
iii. The prosecution submitting an appeal to the High Court form a subordinate court is not a
special circumstances.
iv. Desirable to order an early hearing of appeal.

n. Bail pending police investigation

- s.387 which states that bail can be granted either by the police of icer in charge of a police
station where X has been detained but not yet charged in court. This would be known as bail
pending police investigation or in short police bail.
- s.388 assisted the police by empowering the police to release the accused on police bail while
investigations are still pending. The Court is of the view that it was lawful for the police to issue
police bail under s.388(1) after the accused was released by the Magistrate following detention
under s.117.
- the court further held that the police having the power to grant police bail must necessarily
have the power to impose conditions in the bail pursuant to s.390.
- Although police has power to issue bail under s.388 even if the accused has been released
from remand under s.117, the power must not be abused where the accused in the case was
f
f
f
f
f
f
asked repeatedly to present himself as the police station only to have his bail endorsed from
time to time. This contravenes Art.5 of FC.
 Charges

1. Drafting of Charge

- Reference must be made to s.152, 153, 154 CPC

- Sample of charges can be found in Form 27 of 2nd Schedule to the CPC
- Lim Bah v Opium Farmer, the charge must be precisely and positively stated so that the
accused may know with certainty what is charged.
- Syed Bakri, Prosecution should adhere as closely as possible the wording of the statute
constituting the o ence with which the accused is charged with
- Lim Yoo Hock, charge must give su cient particulars to the accused so. that he may be able
to defend himself
- s.152(1), state the o ence with which the accused is charged
- s.152(2), required to use the speci c name of the o ence
- s.152(4), applicable statute and the section of the statute must be stated
- s.153(1), time, date and location of the alleged o ence must also be stated
- s.156, if there is a defective charge, reference will be made to s.156 which provides that unless
the error or omission is material in that the accused was misled by the error or omission, the
charge will not be vitiated.
- s.158, the court can amend the charge at any time before the judgment is pronounced.
2. Amendment of Charge
- s.158, a charge can be amended at any time before judgment is pronounced.
- Heng You Nang, the court has no duty to amend the charge, it is for the prosecution to apply
for amendment.
- Francis Dang anak Nuya, prosecution must obtain the leave of court before applying to the
court for amendment.
- Time to amend: usually at the end of prosecution’s case, but in Salamah, the court held that
the prosecution may amend the charge at the end of defence’s case if the rights of the accused
are not a ected.
[after amendment made]
- s.158(2), it shall be read and explained to the accused.
- Hee Nyuk Fook, the court held that whether the failure to read and explain the amended
charge is fatal or not depends on the facts of each case.
- s.159, the Court must ask the accused to plead to the amended charge and to state whether
he is ready to be tried on the charge or altered or added charge.
- if accused declares that he is not ready, the Court must consider his reasons and decide
whether to proceed or not.
- if the amended charge prejudices the accused or the prosecution, the court may direct a new
trial or adjourn the trial as provided for in s.160
- if the charge is amended after trial commences, s.162 provides that the prosecution and
accused are allowed to recall and re-examine witnesses.
- s.173(i), after the charge is amended, the court must ask the accused whether to plead guilty or
claim trial
- s.173(j)(i), provides that the court shall then convict him and pass sentence upon him
according to law.

3. Purpose of Charge

For the accused

- a charge is a notice to the accused which must be conveyed with su cient clearness and
certainty and which the prosecution intends to prove against him of and which he will have to
clear himself.

- the purpose is to make a formal accusation against the accused person.

- informs the accused of the o ence alleged against him and must provide su cient particulars
to the accused for him to prepare his defence- Lim Yoo Hock.
ff
ff
ff
ff
fi
ffi
ff
ff
ffi
ffi
 - Lim Bah v Opium Farmer, the charge must be precisely and positively stated so that the
accused may know with certainty what is charged.

For the Court

- a piece of information that enables the judge to know what evidence should be led by both the
prosecution and the defence as only relevant evidence is admissible.
- Syed Bakri, Prosecution should adhere as closely as possible the wording of the statute
constituting the o ence with which the accused is charged with

- reference must be made to s.152, 153, 154 regarding the drafting of criminal charges
- a charge also indicates the punishment prescribed by law to be imposed if the accused is
found guilty of the o ence.
- jurisidiction of the court is determined by looking at the o ence charged and/or punishment it
carries.

4. Duplicity of Charge

- there is a duplicity of charges, and whether the duplicity is curable or not would determine
whether X has a good ground of appeal.
- Yap Liow See and See Yew Poo, if the charge contains two separate o ences which could
have proceeded on two separate charges at one trial, then the duplicity is a mere irregularity
which can be cured under s.422 if it does not cause a failure of justice.

s.164 s.165 s.166 s.170

i. Three o ences s.165(1)- same transaction where there is a series s.170(1)-

ii. same kind
iii. within 12 months
‘same transaction’ de ned
in Amrita Lal Harza v
Emperor:-
- proximity of time
- proximity of place
- continuity of action
- community of purpose
or design
of acts and it is (a) same or di erent
doubtful as to which o ences in the same
o ences have been transaction; OR
committed. Accused (b) one abets the other
will be charged with or attempts to
all or in the alternative commit the same
and tried in one trial. o ence as the other

same kind’- those s.165(2)- acts constitute to s.170(2)-

punishable with the an o ence under more refer to statute
same amount of than 1 provision of the law
punishment under the
same section of the PC

s.165(3)- acts are

individual o ences but
when combined consitute
another o ence

5. convicted of o ence not charged

- Accused should only be convicted for the o ence which he was charged with. However there
are 4 exceptions where he may be convicted for an o ence where he was not charged for:-
i. s.167 (read with .166)- where A is charged with one o ence but appears in evidence that he
committed a di erent o ence for which he might be charged according to s.166.
- Test in R v Lew Cheok Hin-
a. where the facts are such that the unframed charge was available from the start under s.166
and
ff
ff
ff
ff
ff
ff
ff
ff
ff
ff
ff
fi
ff
ff
ff
ff
ff
ff
ff
 b. The Court is satis ed that had the unframed charge been framed, the parties would have
raised the same issues of facts and adduced the same evidence.

ii. s.168- if the accused is charged with an o ence, he may instead be convicted for having
attempted to commit the o ence.

iii. s.169(1)- where A is charged with an o ence, but only some of the particulars of the case were
proved, causing the o ence to drop to a ‘minor o ence’. He may then be charged with the minor
o ence instead.

‘minor o ence’ de ned in Lew Cheok Hin, as ‘o ence that is produced by deletion without
alteration of the initial o ence.’

iv. s.169(2)- A is charged with an o ence, but evidence holds it to be reduced to a minor o ence.
ff
ff
fi
fi
ff
ff
ff
ff
ff
ff
ff
ff
ff
Initiation of Proceedings

1. X has to lodge a police report in respect of the alleged offence of [OFFENCE] under [s.xxx of
the Penal Code].

2. Referring to the 3rd column of the 1st Schedule of the CPC, the phrase ‘shall not arrest
without warrant’ applies to offences under [s.xxx of PC]. Read together with s.2 CPC, such
offences are non-seizable in nature. Therefore pursuant to s.108 CPC, the police can either
refer X to a Magistrate or obtain an order to investigate from the DPP before the proceeding to
initiate police investigations.

3. If the PP does not issue an order to investigate then the police would refer the matter to a
Magistrate. When X appears before the Magistrate, he will then make a “complaint” as defined
in s.2(1) CPC. Upon receiving the complaint, the Magistrate has discretion as to whether to take
cognisance of the complaint by virtue of s.28(1)(a) CPC. in the case of Tan Hoe Watt, the court
held that the Magistrate must take cognisance (acknowledgement) of the complaint first before
examining the complaint.

4. Once the court has taken cognisance of X’s complaint, then pursuant to s.133(1) CPC, the
Magistrate shall set a date to examine X in accordance to s.133(a), and in the meantime serve
a notice on the prosecution at least 7 clear days informing him on such a date and particulars of
complaint as stipulated in s.133(1)(b) and (c) CPC.

5. Pursuant to s.133(1)(d), the Magistrate would then examine X on oath and reduce the
substance of the examination to writing, which has to be signed by X as the complainant and
also by the Magistrate. The PP may choose to appear on such-date to assist the Magistrate in
the examination.

6. Upon examining X on oath, the Magistrate would then decide whether to dismiss the
complaint under s.135, if there is no sufficient ground for proceeding with the matter, or to
proceed against Y under s.136 if there are sufficient grounds for doing so. The Magistrate may
also inquire further into the case either personally or by directing the police to do so if there was
any doubt in the complaint.

7. Further, pursuant to s.133(1A) and (1B) wherein the prosecution can at any stage of the
examination, direct the police to investigate the offence complained of and in the interim,
Magistrate cannot proceed further with the examination of the complaint. The prosecution can
here under s.135 inform the Magistrate that no prosecution shall proceed in respect of the
offence complained of whereupon the Magistrate has to dismiss it.

8. If the Magistrate decides to issue process, the relevant provision would be s.136, it would be
by way of summon/warrant. Looking at [s.xxx PC], 4th column of the First Schedule, the proper
process is by way of [summons/ warrant] and as such the Magistrate will issue a [summon/
warrant] against the prosecution.

9. On the [summons/warrant], there must be a written date which fixes the date that the accused
has to appear before the Court.

10. If the prosecution fails to make an appearance, reference must be made to s.173(o) CPC,
where the court may either proceed ex parte to hear and determine the complaint or adjourn the
hearing to a future date.
11. The magistrate may thereupon record a plea of guilty and convict him according to law,
[state the applicable punishment].
Police Investigation

1. First information report (s.107 CPC)

Definition:
i. The FIR is also known as the complaint to the police or police report. Police investigation usually
starts with the FIR but the FIR is not a condition precedent to commence police investigation.
Emperor v Khwaja Nazir. FIR is not substantive evidence but it can be used to corroborate or
contradict testimony of the maker of the FIR during the trial. Tan Cheng Kooi v PP.

ii. Criminal procedure regulating the lodging of the FIR is described in s.107 CPC. s.107
provides that every information relating to the commission of an offence given orally to an officer in
charge of a police station be reduced to writing by him or under his direction and be read over to the
informant.s.107(2), the information shall be entered into a book to be kept by that officer which shall
append the date and hour the information be given. The informant shall sign the report.

iii. a police report need not be lodged in a police station following s.107(3). Any information
given by a person relating to the commission to a police officer shall be deemed to be received at a
police station.

Issue 1: Omission to mention particulars in FIR

it may be fatal in the prosecution’s case as held in Lee Ah Seng v PP. The federal court in
this case held that the complainant’s omission to mention any important particular, not one of the
mere detail in the FIR, would render his evidence to become open to at least a reasonable doubt and
the court must be very careful in accepting his evidence unless reasonable explanation is given.

Issue 2: Failure to reduce FIR into writing

in the case of PP v Fong Chee Cheong, it implies that if the FIR is reduced into writing under
s.107 before the investigation and is not adduced in evidence at the trial, the court may make
adverse inference against the PP under s.114(g) EA 1950. If the PP can establish a prima facie case
against the accused without the FIR, then non-production of the FIR would not vitiate the
prosecution’s case. This was followed in Tan Cheng Kooi v PP and PP v Abdul Razak bin Johari.

In the case of Balachandran v PP, the failure of the prosecution to produce the FIR in court
is not fatal as the court would be of the view that the testimony of the witness, if believed, i.e. not
being rebutted, is sufficient to establish any fact. As a result, the court would only draw adverse
inference against the failure of the prosecution to produce FIR in evidence if the defence has
attacked the credibility of the witness in relation to his testimonial evidence which is not
corroborated.

2. Admissibility of FIR s.108A

i. s.108A provides that a copy of the FIR certified by the Officer in Charge of the Police District is
admissible as evidence of the contents of the original FIR.

ii. if the report is not a FIR, then s.108A cannot apply as seen in Kang Ho Soh and Ismail bin Atan.
In both of the cases, the report seeks to be admitted is an arrest report and not FIR, hence the
reports are not admissible under s.108A.

iii. FIR gives certain particulars regarding the complaint, inter alia, the date and time of the act
complained of, date and time of the report, particulars of the facts alleged and other relevant facts
which would be useful to both the defence as well as the prosecution as the FIR is the first and
earliest account of the incident. The FIR is deemed to function as a starting point of an investigation
and is one of the legal documents which set the law, in particular the authorities in action.

iv. An FIR is not substantive evidence and can only be used to contradict and corroborate the maker
of the FIR at the trial. The FIR can also assist the defence in the preparation of his case. In the case
of Fong Chee Chong, the court followed Emperor v Khwaja Nazir Ahmad and held that an FIR is
not a condition precedent to start a criminal investigation and the failure to reduce the FIR into
writing is not a good ground to dismiss the case.

v. In Tan Cheng Kooi, the court held that the failure to adduce the FIR as evidence is fatal if
prosecution’s case relied solely on the FIR. However, in Abdul Razak bin Johari, the court held that
failure to adduce the FIR as evidence is not fatal if the prosecution can establish a prima facie case
without relying on the FIR.

vi. s.51A(1) provides that an accused is entitled to a copy of FIR before trial as of right.

vii. Failure to sign an FIR is an offence under s.180 PC punishable with imprisonment for 3 months
or a fine of RM1,000 or both.

3. PO power to require attendance of witnesses

s.111(1)- IO may by, order in writing, require the attendance before himself of any person who is
acquainted with the circumstances of the case. The written order shall be directed to the person
whom presence is required.

s.111(2)- if any such person refused to attend, the IO may report such refusal to a Magistrate who
may then at his discretion issue warrant to secure his attendance.

S.118- where the IO feels that there is sufficient evidence or reasonable grounds to continue the
investigation, the complainant or other witnesses may be asked to execute a bond to secure their
attendance at the MC to give evidence against the accused. If the bond is refused, MC may issue a
warrant or summons.

S.174 PC- failure to attend amounts to an offence.

4. s.51 and s.51A

s.51A
i. The prosecution shall before the commencement of the trial deliver to the accused the following
documents:
- a copy of the information made under s.107
- a copy of any document which would be tendered as part of the evidence for the prosecution

ii. s.51A does not provide a time limit within which the prosecution must comply with it, as a matter
of practice, the documents should be delivered to the accused 3 weeks before the commencement
of trial.

iii. Failure to comply with s.51A may affect the admissibility of the document in question, but
nevertheless subject to ss.51A(3),(4),(5).
- in the case of Mohd Fazil Awaludin, the word ‘shall’ was interpreted to be merely directory;
while in the case of Dato Seri Anwar Ibrahim, the FC held it to be a mandatory provision.
Nonetheless, the Court was silent as to the effect of non-compliance of s.51A. In Lee Lu
Chang, the HC held that unless s.51A is complied with, the trial would not begin.
- To solve this uncertainty, the amendment to s.51A clearly states in s.51A(3) that a document
shall not be inadmissible in evidence merely because of non-compliance with s.51A(1).
- Documents may even be delivered to the accused after commencement of trial provided the
accused is given the opportunity to recall and re-examine witness in relation that document
s.51A(5). However, Court retains the power and discretion to exclude any such documents if it
is shown to have been done deliberately and was withheld in bad faith. S.51A(4).

iv. In the event that the prosecution does not wish to tender the documents as evidence in the court,
accused is advised to argue based on s.51. in the case of Raymond Chia, the court held that the
accused is entitled to those documents if relevant and essential for adjudication.

s.51
i. Accused should apply to the Court to issue a summons or order to the prosecution to
produce the documents in their possession.

ii. Reference must be made to Dato Seri Anwar Ibrahim v PP, where the FC stated that the 2
provisions are separate and distinct. S.51A imposes an obligation upon the prosecution to supply
certain documents. s.51 gives the court discretion of the discovery of specific instances.

iii. Further reference shall be made to the case of PP v Raymond Chia where the court stated that
for the purpose of s.51, the court must consider the justice of the case and what stage of the
proceedings the application is made.

- if it is made before the commencement of trial, reference must be made to s.152-154, in relation
to the framing of charges, wherein if the particular documents is specified in the charge, then
the prosecution must allow for the inspection of the document by the accused to enable him to
prepare for his defence.
- Datuk Tiah Thee Kian, where the accused was entitled to the documents even if it is not
specified in the charge because of the complexity of the alleged transaction, numerous
documents involved and the relevancy of the documents at hand.
- If it is made during trial, the court will have regard to the question of relevancy.

iv. on the facts, it is highly likely that the [documents] will be referred in the charge, it would be
made available to the defence under s.51. Even if it was not referred to in the charge, it should be
made available as it is relevant to the offence.

5. Examination of Witness/ taking statement from witness s.112

i. Reference must be made to s.112, which provides that an investigation officer may examine
orally any person supposed to be acquainted with the facts and circumstances of the case and shall
reduce such examination into writing. S.112(2) and s.112(3) also provides that such person
examined is bound to truthfully answer all questions put to him, though he may refuse to answer if it
would incriminate him.

ii. IO should inform the witness of the provisions of s.112(2) and (3) and such statement shall
whenever possible be taken down into writing, and the maker should then sign the statement or affix
his thumbprint on it after it has been read to him in the language in which he made it, giving him an
opportunity to correct the statement as provided for in s.112(5). s.112 statement must be read back
to the witness after it is recorded as in the case of PP v Pathmanabhan, failure to do so amount to
breach of is.112(5).

Iii. The issue is whether the writing and signature or thumbprint requirements are mandatory
due to the wording in s.112(1) and s.112(5). According to the case of Abdul Ghani bin Jusoh, the
FC held that because of the phrase ‘whenever possible’ in s.112(5), the signature or thumbprint is
not mandatory; the Court further mentioned in obiter that the writing requirement under s.112(2) is
mandatory because the phrase ‘whenever possible’ in s.112(5) refers to the signature or thumbprint,
not the writing.

Iv. However, in Jayaraman, the FC distinguished Abdul Ghani bin Jusoh and held that an oral
statement not reduced into writing was admissible, because of the phrase ‘whenever possible’ in
s.112(5), provided reasonable explanation is given.

6. When can a statement under s.112 can be used in evidence

s.113 except as provided in this section, no statement made by any person to a police officer in the
course of a police investigation made under this Chapter shall be used in evidence.

3 situations provided in s.113(3), (4) & (5)-

i. (3): where the accused has made a statement during police investigation, such statement can be
admitted in evidence in support of his defence during the trial
ii. (4): nothing in this section shall apply to any statement made in an identification parade…
iii. (5): when any person..

***accused statement cannot be used to impeach his credit, but a witness statement may be used to
impeach the credit of the witness.

7. Rights and Suffers of person lodging FIR

i. Rights
s.107A(1)- any person given information under s.107 may request for a report on the status of the
investigation of the offence complained of in his information from the OCS where he gave the
information.
s.107A(2) & (3)- police is required to provide the status of investigation in relation to…
s.107A(4)- where a request has been made but OCS has failed to furnish the informant, the
informant may make a report to the PP of the failure

ii. Suffers
a person lodging a FIR will not be sued for defamation as held in Lee Yoke Yam v Chin Keat Seng,
the Federal Court held that based on public policy absolute privilege should be given to statements
made in a FIR under s.107 as well as under s.112 to encourage the public to make a police report.
However, a complainant who lodges a false FIR may be prosecuted under ss.177, 182 or 203 of the
Penal Code.

8. Voir Dire

i. A voir dire is required when there is a dispute as to the voluntariness of the statement.
Ii. Procedure:-
- PP has a duty to prove that a statement is voluntary and not obtained by threat, inducement or
promise.
- Before entering the statement, PP should satisfy itself and adduce evidence to satisfy this.
- Accused is entitled to cross examine and give evidence to support his objection.
- PP is entitled to cross examine the accused and any defence witnesses.
- Court to decide whether the statement was made voluntarily or not.
iii. Court has discretion to subsequently exclude a statement.
 Powers of Public Prosecutor

1. Difference between sanction and consent

- The prosecution of certain offences requires the consent or sanction of the PP. The
difference between sanction and consent is illustrated in Abdul Hamid. Where Smith
J noted that in the case of sanction, the prosecution gives it without relatively deep
consideration whereas consent requires deeper deliberation and consideration of
the case before it is given. Sanction applies to less serious offences whereas consent
applies to more serious one.
- Failure to obtain sanction of the PP will result in an irregularity in the trial, which
can be cured under s.422, whereas failure to obtain the consent of the PP will lead to
an illegality which renders the trial a nullity and which is not curable under s.422, as
re lected in cases such as CHuan Chor Kian and Bong Kim Son. However, even if
there is no explicit consent from the PP, the presence of the DPP at the trial implies
the said consent as the DPP is the alter ego of the PP. Johnson Tan, Mohd Halipah.
- Similarly, where a charge that requires consent has been amended, fresh consent of
the PP is not required when the DPP is present.
- As consent in more serious than sanction, having obtained the sanction of the PP is
therefore no evidence of having obtained his consent.

2. Appointment of AG and Person who can exercise the power of PP

- The appointment of the AG is governed by Art.145(1) of the Federal Constitution,
which provides that the Yang-Dipertuan Agong shall, on the advise of the Prime
Minister, appoint a person who is quali ied to be a judge of the Federal Court to be
the AG of the Federation of Malaysia.
- The appointment of person who can exercise the power of the AG is provided for
under ss.376(3) and 376(3A) which provides that the AG, who is also the Public
Prosecutor, may appoint Senior Deputy Public Prosecutor (SDPP), Deputy Public
Prosecutor (DPP) and Assistant Public Prosecutor (APP). They may exercise all
powers of the PP except those designated as the personal powers of the PP.

3. Institute
- According to Art.145(3) and s.376(1), the PP has wide discretionary powers to
institute proceedings. The term ‘institution’ is de ined in PP v Manager, MBF
Building Services Sdn Bhd as ‘to commence’.
- However, the case differs as to when proceedings are instituted.
In Re Kah Wai (Ipoh) it held that for copyright cases, proceedings are instituted when
the accused is arrested.
In PP v Toha bin M Yusuff, the court held that the proceedings are instituted at the
moment the court ask the accused for a plea. This case was af irmed in PP v
Punanesvaran a/l Kesaran.
- the wide discretion in which the PP may institute proceedings can be seen in
Johnson Tan Hang Seng, where the accused was charged under s.57 ISA 1960
where the punishment was death. The accused appealed that he should have been
charged under the Firearms Act 1960 or the Firearms (Increased Penalties) Act
1971. The Federal Court held that PP has discretion to prefer the charge and Art
145(3) FC prevails over equality before the law under Art 8 FC.
- In Sukma Darmawan v Ketua Pengarah Penjara Malaysia, the accused was
charged under s.377B PC. The accused applied to be tried under Syariah Law
instead. The Court of Appeal held that the PP has the discretion to prefer which
charge he deems it.

4. Conduct

- According to Art.145(3) and s.376, the PP has wide discretionary powers to conduct
criminal proceedings.
- The term ‘conduct’ was interpreted in the case of PP v Datuk Haji Harun Idris to
mean ‘to lead, guide, manage’. The PP has the discretion to decide whether to call a
particular witness or produce a particular document or thing as evidence. However,
the PP cannot regulate criminal procedure, the jurisdiction of the courts or the
discretionary power of the courts.
- Reference be made to Jayaraman where the court held that under s.170(1), it is
court’s power to order separate or joint trial and not PP’s. Nonetheless, in Tan Sri
f
f
f
f
f
 Eric Chia, the HC held that the PP has the right to take evidence from overseas and
this does not interfere with judicial powers of the SC.
- S.380, any private person may appear in person or by advocate and prosecute for a
non-seizable offence against his own person or property in the Magistrate’s Court.
- According to s.377, the PP, SDPP, DPP and APP can conduct all prosecutions, while
other persons need written authority of the PP to prosecute seizable offences. In
Repco Holdings Sdn Bhd, the accused was prosecuted by 2 of icers of the Securities
Commission without written authority of PP although such prosecution was allowed
under the Securities Industries Act 1983 and Securities Commission Act 1993. The
court held that these provisions were ultra vires the Art.145(3) FC, and was
therefore void. Gopal Sri Ram JCA held that Chairman of the Securities Commission
is not authorized to constitutionally to conduct prosecution under the Securities
Commission Act.
- Due to the decision in Repco Holdings, s.380A was legislated which provides that
ss.377 and 380 will prevail notwithstanding any inconsistencies in any written law.

5. Discontinue
- According to Art.145(3) FC, the PP has power to discontinue any criminal
proceedings while s.254(1) provides that the PP may do so at any stage before
judgment, and the effect of such discontinuation is that all proceeding shall be stayed
and accused shall be discharged. However, s.254(2) provides that in a subordinate
court, the prosecution may discontinue proceedings but leave of the Court must irst
be obtained; if the leave is granted, all proceedings on the charge shall be stayed and
the accused shall be discharged.
- S.254 allows PP to decide to prosecute further at any stage of the trial before the
judgment is delivered. In Lee Chan Sang, the court held that s.254 provide the
powers exercisable by the PP at any stage of any trial. Further in Poh Cho Ching,
where the court held that the PP has the power and discretion to discontinue any
prosecution or decline to prosecute the accused further as he thinks it, and it is not
for the court to decide.
- As re lected in K. Abdul Rasheed, the effect of discontinuance is under s.254(3) and
whether the discharge granted should amount to an acquittal depends on the
circumstances of the individual case although as a general rule, following s.254(3),
the discharge would not amount to an acquittal unless otherwise directed by court.
- In Koh Teck Chai, it was held that the power of court under s.254(3) should be
exercised judiciously and it is appropriate to grant a discharge amounting to an
acquittal (DAA) instead of a discharge not amounting to an acquittal (DNAA) if the
PP discontinues the proceedings, since it is not right to leave a charge hanging over
an individual for an inde inite period unless some very good reasons are shown.

6. Authority to Conduct Proceedings

- s.377(a) Every criminal prosecution shall be conducted by: PP, SDPP, DPP or APP.
- Unless with the written authority of the PP for the seizable offence, s.377(b)
provides 5 categories who has authority to conduct prosecution.
Advocate; police of icer not below the rank of Inspector; of icer or any Government
department; of icer of any statutory authority or body; person employed or retained by
any local authority.

7. Previous Sanction of PP
- s.129 CPC- previous sanction of the PP is required to be in writing and acted
upon within 1 month for certain offences.
- e.g. offences relating to: -
public servant 172-188 PC
giving false evidence and to public justice 193-196, 199-211, 228 PC
documents and forging 471, 475, 476 PC except in the case of complaints laid by the PP.

- Effect of lack of sanction

Hassan bin Isahak v PP and Datuk Mahinder Singh, the court held that the lack of
sanction rendered the trial a nullity.
However, in Joginder Singh v PP, the lack of sanction is only an irregularity, it may be
cured under s.422 if there is no miscarriage of justice.

8. Personal power of PP
f
f
f
f
f
f
f
f
- To appoint SDPP and DPP s.376(4)
- To approve proceedings to be taken against the editor, proprietor, printer or
publisher of any book or newspaper registered under various statutes of dissemination
of:
i. Any seditious matter punishable under the Sedition Act 1948
ii. Any matter concerning a Judge or Magistrate which amounts to criminal intimidation
or defamation under the Penal Code s.68(2)
- To issue certi icates to transfer cases from subordinate courts to the high court
s.418A
- To give notice of appeal against acquittal s.50A
- To refer questions of law to the Federal Court s.66 CJA 1964
f
 Entry, Search and Seizure

a. Search without warrant (answer plan)

*relevant sections: s.62,63,116,59,435 CPC & s.40 Interpretation Act 1948 and 1967

i. s.63 is most likely not applicable because it requires the written authority of the
Chief Police Of icer; generally, the CPO is reluctant to give such authority except
in very exceptional circumstances.
ii. s.62(1), if information is given to any police of icer ranked Inspector and above
that there is reasonable cause for suspecting that any stolen property is
concealed or lodged in any place and has good grounds for believing that by
reason of the delay in obtaining a search warrant the property is likely to be
removed, that of icer by virtue of his of ice may search in the place speci ied for
speci ic property alleged to have been stolen.
iii. s.62(2), provides that a list of property alleged to be stolen must be delivered or
taken down in writing with a declaration that the property listed therein was
stolen and that the informant has good grounds for believing that the property is
deposited in that place. [justify s.62(1)]
iv. Alternatively, s.116(1) provides that whenever a police of icer making police
investigation considers that the production of anything is necessary to the
conduct of an investigation into any offence which he is authorized to investigate
and when the thing is not know to be in the possession of any person, the of icer
may search or cause search to be made for the same in any place.
v. Meanwhile s.59(1) provides that whenever any place liable to search or
inspection is closed, any person residing in or being in charge of that place shall
on demand of the of icer allow him free ingress to it and afford all reasonable
facilities for a search in it.
vi. S.59(2) read with s.16(2), provides that a reasonable force may be used to break
into the premises.
vii. A close reading of s.59 suggests that these provisions may only apply to search
with warrant; however, s.116(4) suggest that these provision can also apply to
search without warrants.
viii. Reference may also be made to s.40 of the Interpretation Acts 1948 and 1967
in relation to the implied power argument that if a police of icer has power to
search, then he is impliedly given power to enter the premise as well. Even if the
search is unlawful, any evidence so obtained is admissible provided it is relevant,
as was held in the cases such as Kuruma and Sang.

Seizure of property suspected to be stolen

i. s.435, provides that any police of icer may seize any property which is alleged or
may be suspected to have been stolen, or which is found under circumstances
which create suspicion that an offence has been committed.
ii. If the seizure provisions in the CPC are inadequate, s.5 CPC allows reference to
English law. In the English case of Ghani v Jones, Lord Denning MR Followed
Chic Fashions (West Wales) Ltd v Jones held that when conducting a search,
police of icers are entitled to take anything which they ind there which they
reasonable believe to be material evidence in relation to the crime for which they
enter, or which suggests the commission of some other crime. This view was
followed in the Malaysian case of Re Kah Wai Video (Ipoh) Sdn Bhd.
iii. S.64 and s.65 should also be complied with, wherein a list of things seized has to
be made and signed by the police and the occupant at the place search shall be
permitted to attend during the search. The purpose of s.64 is to corroborate the
evidence of the police of icer regarding property that was found, and to avoid the
planning of any evidence or any allegation thereof. A copy of the list prepared
and signed shall also be delivered to him at his request. However, even if the
police fail to prepare the list, it would not be fatal to the prosecution’s case
despite the word ‘shall’ in s.64. Nevertheless, the court would carefully
scrutinize the evidence of the of icers who conducted the search because such
failure may cast doubt on the bona ide of the search and seizure, as was held by
Raja Azlan Shah J in San Soo Ha.

b. Search of body of person not under arrest

s.22, when a person who is intoxicated, lawfully in custody.

f
f
f
f
f
f
f
f
f
f
f
f
f
f
f
f
 s.17, a search lawfully made in any place in respect of any offence, all person found
therein may be lawfully detained until the search is complete, and if the thing sought is
in its nature capable of being concealed upon the person, be searched for it.

c. List of things seized

Purpose: a search list must be prepared and signed by police of icer pursuant to s.64,
itemizing the property seized and the places where they were found. The purpose of
s.64 is to corroborate the evidence of the police of icer regarding property that was
found, and to avoid the planting of any evidence or any allegation thereof.

Case law: -
i. San Soo Ha, the court held that omission failure to prepare such list is not fatal
to the prosecution’s case but the Court will carefully scrutinize the evidence of
the of icers who conducted the search because such omission will cast a doubt
on the bona ide of the search.
ii. Alcontara v PP, the court held that where there is acute con lict between the
evidence of the prosecution witness and evidence of the defence in respect of
where the exhibits were found, the prosecution must tender a search list. Failure
to do so would attract adverse inference against prosecution under s.114 EA
1950.

d. Search for person sought to be arrested

s.16: any person with a warrant of arrest or any police of icer has reason to believe that
may person sought to be arrested is in a place, then the person residing in or in charge of
such place shall, on demand of such person aforementioned, allow him free entry to
search for the person sought to be arrested.
s.16(2): reasonable force may be used to break in, if entry is denied.
s.58: search for person wrongfully con ined
s.17: power to search person in place searched under warrant
s.20: when a person is arrested, police of icer making such arrest may search the
arrested person.
s.21: power to seize offensive weapon. Private person have a power to conduct a body
search but only to remove offensive weapon.

e. Search for Organized Crime and Computerised Data

s.116A- search and seizure relating to offence of organized crime

s.116B- person in premise must allow police to access to computerized data

f. Search of Person (intoxicated)

s.24 CPC- When any person refuses on the demand of a police of icer to give his
name and residence, he may be arrested by that police of icer in order that his name or
residence may be ascertained. The police of icer may pursuant to s.22 CPC search the
person for the purpose of ascertaining his name and place of residence who by reason of
incapacity from intoxication unable to give a reasonable account of himself.

s.20(b) provides that whenever a person is arrested without warrant and that
person cannot legally be admitted to bail or is unable to furnish bail, the police of icer
may search such person and place in safe custody.

s.20A provides that a body search must comply with the 4th Schedule of the CPC.
s.3 of the 4th Schedule provides that the of icer conducting a body search shall do so in a
professional manner and have the highest regard for the dignity of the person arrested.
A pat down search would be suf icient in this case.

s.4 of the 4th Schedule CPC provides that a pat down search means searching the
outer clothing of the person arrested by running the hands over the outer garments of
him. It is conducted where there is reasonable suspicion that a weapon, object, evidence
or contraband is being concealed. The search may be conducted at the time of arrest or
before the arrested person is put into custody in a lock-up or detention centre. s.5
provides that authorization is not required to conduct a pat down search, the procedure
of a pat down search is provided in s.6(a)-(l).
f
f
f
f
f
f
f
f
f
f
f
f
f
f
g. Return of Stolen/ Seized items

Reference can be made to s.413 where the police may upon the request by X in
writing make an application to the Magistrate, the application is usually supported by a
police report of a seizure, any document proving ownership if the property seized is a
vehicle. The application made can be heard summarily by the registrar or magistrate in
chambers in deciding who is entitled to the possession of the property. The Magistrate
usually requires the owner to execute a bond with or without sureties.

If the police does not assist, X may in his application by way of notice of
application supported by af idavit request the return of the property seized, such
application is heard in the open court.

In the case of Manoharan a/p Dorasamy v Ketua Polis Ibu Pejabat Kontinjen
Polis Seremban, Negeri Sembilan, the appellant was a registered owner of a car which
was seized and kept at the police station. The vehicle has been detained for more than
48 hours and the police did not comply with the provisions of s.413 by producing the
vehicle to the Magistrate. The court held that such detention of the vehicle is illegal and
the appeal was allowed.

h. Power to search persons in place searched under warrant

- Reference is made to s.17 wherein the said section provides for search of a
person even prior to arrest. Based on facts, all persons found at the entertainment outlet
will be lawfully searched and detained until the search is complete or all of them may be
searched though not arrested for any item which may be concealed on the person.

- the police of icer must not be below the rank of Inspector and the search be
conducted in his presence. S.17 is wide enough to include search with or without
warrant. When the search of a place is made, the occupant or someone on his behalf
must be permitted to attend during the search (s.65).

- and pursuant to s.64, a list of things seized in the course of the search must be
prepared and signed by the of icer.

i. Validity of Search Warrant

- Reference be made to s.57(2) which provides that a search warrant shall

remain in force for a reasonable number of days to be speci ied on the warrant. Although
it appears that the requirement of the time period being speci ied in the warrant
pursuant to s.57(2) is mandatory for the warrant to be effective, there is no Malaysian
case on this point.

- Therefore, reference has to be made to the Singaporean case of Lam Chiak

where the High Court of Singapore, in construing the wording of s.57(2), held that the
legislature had deemed it it to leave it to the court issuing the warrant to specify the
time period in the warrant. Hence the requirement of the time period is merely directory
and not mandatory, and whatever the time period speci ied must meet the test of
reasonableness. In the case of Lam Chiak, a warrant was executed 6 days after it was
issued; the court held that it was executed within a reasonable period of time.

j. Person unlawfully detained

A person who has been unlawfully detained by the police may apply for a writ of
habeas corpus for his release or by way of revision if he is still detained. He may also
initiate a civil action for damages for the tort of trespass and false imprisonment. In Tan
Kay Teck, the court awarded damages to a contractor and his wife for unlawful arrest
and detention.
f
f
f
f
f
f
f
Sentencing

When an accused pleads guilty or at the end of the trial when the court inds the accused guilty,
the court will pass sentence according to law. In sentencing, the court exercises its discretion
according to established principles and guidelines.

a. One-transaction and Totality Principle

The court may use either the one-transaction principle or the totality principle in deciding
whether the sentence is to be concurrent or consecutive.

The one transaction principle means that the charges arise out of the same transaction and the
sentences are to run concurrently. The conditions for same transaction is that there must be
proximity of place and time, continuity of action, and community of purpose or design as held in
Amrita Lal Harza v Emperor. In Yap Huat Heng, there were 4 offences, namely raping and
robbery the 1st victim and raping and robbery the 2nd victim, both of whom were sisters. The
trial court imposed a sentence of 3 years’ imprisonment for each offence and ordered them to
run concurrently. On appeal, the High Court disagreed and held that the sentences are to run
concurrently if the accused is convicted of a principal offence and a subsidiary offence. In that
case, the two counts of rape and two counts of robbery were each distinct sets of offences.
Hence, the high court ordered that the sentences on rape of 2 victims to run consecutively and
the sentences on robbery to run concurrently with the principal offence while the length of
imprisonment was enhanced to 5 years of rape. Therefore the total sentence amounted to 10
years’ imprisonment.

In relation to the totality principle, the court will irst pass sentence on each charge and then
looks at all the sentences imposed to decide whether in totality the sentence would be excessive
if it were to run consecutively, as re lected in the case of Sau Soo Kim. If so, the court may order
two or more sentences to run concurrently.

Consecutive and concurrent sentences on Firearms

On the facts of accused, he is convicted of unlawful possession of irearms with

ammunition. Reference must be made to Ooi Sim Yim v PP, where Mohd Azmi FCJ made
remarks that a more severe sentence should be imposed for unlawful possession of irearms
with ammunition as compared to possession of irearms alone. This means that consecutive
sentence should be imposed for the former whilst concurrent sentence for the latter. Hence,
accused’s sentence will most likely run consecutively.

b. aim of sentencing pg.289 (Q&A book)

i. retribution
- the concept of ‘an eye for an eye’
ii. deterrence
- the aim to sentence is to serve as a warning to society at large and to would-be offenders
iii. rehabilitation
- where the court will pass a lenient sentence on the accused so as to give him an opportunity to
start a new life

c. Victim Impact Statement

- Proviso to s.173(m)(ii) and s.183A provide that the victim or his(her) family member
will give an impact statement before the court passes sentence.
- It is an aggravating factors in passing sentence.
- In the case of Ahmad Rashidi Zainol & Anor, the 2 accused robbed a 76 years old lady
of her gold necklace. The High Court enhanced their sentences from 5 years and 3
strokes to 12 years imprisonment and 10 strokes of whipping as the victim in her
impact statement said she was traumatized by the incident, was afraid to stay alone in
the house requiring a companion and causing inconvenience to her family members,
and had also suffered inancial losses because her gold necklace could not be recovered
as it had been melted at a jewelry shop.

d. Whipping
f
f
f
f
f
f
f
 - s.288- provides for the mode of whipping and that the maximum strokes shall not exceed 24
strokes for adults and 10 for youthful offenders in one trial.
- Chai Ah Kau- A was 18 years old. He was sentenced to 18 months’ imprisonment and 10
strokes at one trial for armed robbery. At another trial he was sentenced to 3 years’
imprisonment and 10 strokes. CA dismissed his appeal and held a total of 20 strokes for 2
convictions for armed robbery at different trials was within the maximum of 48 (24+24)
strokes.

Where whipping is not allowed

- s.289- no whipping is allowed on female; male sentenced to death; male over 50 years old
except under ss.376,377C, 377CA or 377E PC.
- Tan Kim Chok- A was over 50 years, the sentence of 2 strokes was set aside.
- Annuar Layani bin Saidon- there is no whipping on A who is more than 50 years old at the
time sentence was passed.
- Tuan Mat Tuan Lonik- Sentence of 50 strokes for 5 charges of rape was set aside as the
maximum is 24 strokes under s.288(5) in one trial.
Stay of Execution for whipping
- s.311 provides that whipping is automatically stayed where there is an appeal.
- Liaw Kwai Wah- after execution of whipping, the HC cannot increase the strokes on appeal.
- s.291 provides that if the whipping cannot be executed wholly or partially the Court may
substitute it with imprisonment up to a maximum of 24 months imprisonment.

e. Procedure of sentencing

- A was charged by the Magistrate Court under s.324 PC for voluntarily causing hurt by a
dangerous weapon, thus the Magistrate shall pass sentence according to law as in s.173(m)(2)
CPC as it was a summary trial. The phrase ‘sentence according to law’ was de ined in the case of
PP v Jafa bin Daud, as Mohamed Azmi J said that the phrase means that is passed according to
the punishable section and is to be assessed with establish judicial principle.
- On the facts, Magistrate should refer to the punishment section of s.324 PC under column 7th
in the First Schedule. (justify the punishment) as such, the Magistrate shall pass the sentence
according to the law and within the ambit of the law provided.
- Before passing sentence, the Magistrate shall record, if any, the particulars of previous
convictions, evidence of character and plea in mitigation (s.176(2)(r) CPC) as held in PP v Jafa
bin Daud. Mohamed Azmi J said that in assessing the sentence to be passed, the court
considers, whether the convicted person is a irst offender, the magistrate is required to call for
evidence on the accused regarding his background, antecedent and character.
- The court will the ask the accused or his counsel to make a plea in mitigation which is usually
on personal hardship, antecedent, character and other circumstances to move the court to pass
a lenient sentence. The prosecution will then be asked to reply and he will usually submit on the
aggravating factors to move the court to pass a heavy sentence.
- pursuant to s.173(m)(ii) CPC, the court, shall before passing sentence, allow for the victim or
the victim’s family to make a victim impact statement by attending the proceedings or may
allow admission of a written statement. The victim statement would contain the trauma or
harmed suffered by the victim, and how it affected their livelihood, if in a murder case, the
victim was a sole breadwinner for the family.
- in passing the sentence, the Magistrate shall consider such statement in order to make a more
appropriate order taking into account both the accused’s and the victim’s right.
- when the court has decided on the sentencing, the magistrate shall record the sentences under
s.176(2)(s) CPC and it shall form part of the record of proceedings.
- accused can appeal against the sentence as provided in s.316(b) CPC and s.50 CJA if he is
unsatis ied with the sentence pass to him.

f. Withdraw plea of guilt

- Plea of guilty may be withdrawn at any time until the court is functus of ice that is
before sentence is passed. However, the court has discretion whether to allow the
withdrawal before sentence is passed and its power is to be exercised judicially and on
valid grounds as in Lee Weng Tuck.
f
f
f
f
 - There must be valid reason for withdrawing his plea and cannot be according his whim
and fancies as held in PP v Sam Kin Kai.
- In PP v Jamalul Khair, Gunn Chit Tuan J said that the accused can withdraw his guilty
plea even as late as mitigation. But it will depend on the circumstances of accused.
- Because in New Tuck Shen, the court did not allow the accused to withdraw his guilty
plea as he was caught red handed by the Biro Siasatan Negara and had no defence

g. Principles of sentencing

- irst [justify the offence], as was held in Jafa bin Daud, for a sentence to be ‘passed
according to law’, the sentence must be within the ambit of the punishable section and
assessed according to established judicial principle.
- Determine which court has the jurisdiction to try the case
- According to s.282(d), every sentence of imprisonment shall take effect from the date
on which it was passed unless the court passing the sentence otherwise directs. An
example is where the court directs the sentence to take effect from the date of arrest.
.292(1) provides that if the accused is an escaped convict or is currently serving a
sentence of imprisonment, the 2nd sentence may run concurrently or consecutively.
- As for ines, s.283(1)(a) provides that where no sum is speci ied, the quantum of the
ine shall not be excessive. In Teo Woon Tin, the Court of Appeal laid down several
factors to be considered in assessing the quantum of ine to be imposed, inter alia,
pro it arising form the offence, the value of the subject matter of the offence, the
amount of injury done to the victim and inancial position of the accused. Teo Woon
Tin has been followed in Zakariya bin Musa, where High Court set aside the sentence
of RM 3,000 ine imposed by the Magistrate in an offence of theft of a motor-car as the
total sentence was held to be excessive. In Lee Yu Fah, it was held that the ine should
not be excessive to the extent of ruining the accused completely and making him an
outcast of society. With regard to the wealth and poverty of the accused, reference may
be made to Lim Cheng Tong, where it was held that the court should impose a
minimum ine if it is clear that the accused is unable to pay a higher amount. In
Gabriel, the High Court set aside the ine of RM 2,000 because the accused had not
made any monetary gain from the offence as all the stolen goods had been recovered.
S.283(1)(b)(ii) grants the court the discretion to direct the payment of ine to be made
by installments.
- Before sentencing, the court has to consider the mitigating factors which are available
to the accused.
Plead guilty
- This is a strong mitigating factor as it saves the court’s time and cost. In Sau Soo Kim, the
guilty plea of the accused was still considered in mitigation even though the offences involved,
attempted murder and unlawful possession of irearms, are serious offences.
- According to the court in Christopher Khoo, if the accused pleads guilty, a reduction of the
prison term by 1/3 is normally made. , in this case, the mitigating factor were not considered
because of the gruesome killing.
- besides that, the court may consider other mitigation factors such as D’s age, D’s
previous record, circumstances before and after the commission of offence, effect of the
sentence, the gap principle, the health of the offender and so on
- after that, the court has to take into account any aggravating factors, for example the
rampancy of the offence of which D has been convicted.

h. Revision & Control of Sentencing Decision

- Ball, an Appellate Court should be slow to alter the sentence unless the sentence is
illegal or does not follow the judicial principles as illustrated in: -

Disparity in Sentences
- Datuk Hj Harun Idris- the 1st A was given the heaviest sentence due to an abuse of position.
- Salwani Thaleb- A was charged under s.6 DDA 1952. The Court of Appeal substituted 11
years imprisonment with 18 years imprisonment as the sentence was inadequate due to the
gravity of offence, large quantity of drug, and public interest.

Ineffective Sentences
- Khairuddin- 1 day imprisonment was substituted with 18 months imprisonment for CBT.
f
f
f
f
f
f
f
f
f
f
f
f
f
 Unclear Sentences
- Bujang Johny- the Court must state clearly whether the sentences are to run consecutively or
concurrently.
- Datuk Hj Harun Hj Idris- The court must state clearly whether sentence of default of payment
of ine should run consecutively or concurrently with main sentence.

I. Police Supervision

- The court may order police supervision after the offender has served the
imprisonment if certain requirements are satis ied.
- Conditions for sentence of police supervision are provided in s.295(1) which states
that police supervision may be imposed if:
i. The offender has previously been convicted of an offence punishable with imprisonment of 2
years and upwards; and
ii. The offender is presently convicted of an offence also punishable with imprisonment of 2
years and upward.
- The term of police supervision which starts after the expiration of the sentence passed
is as follows:
i. The HC or SC may direct 3 years of police supervision; or
ii. The MC may direct 1 year of police supervision.
- Obligations of persons subjected to police supervision is provided in s.296 which
provides that the person must:
i. Notify his place of residence
ii. Notify any change of his place of residence
iii. Report himself to the of icer as directed once each month.
- Whether police supervision is mandatory if requirements are met
Re Bakar bin Ahmad- it is not mandatory for the court to order police supervision under s.295
even the conditions are satis ied. The Court has discretion.
- Police supervision is usually imposed where the accused has been a persistent offender
and where there was violence involved as seen in cases such as: -
Abdul Wahab- 1-year supervision was imposed as A had 12 previous convictions.
Haled- 2 years supervision was imposed for causing hurt with a hammer as A had 4 previous
convictions.
Sulaiman bin Ahmad- 1 year supervision was imposed as A had 5 previous drug convictions.

J. ‘shall be liable’ vs ‘shall be punishable’

‘shall be liable’ vs ‘shall be punishable’

The phrase ‘shall be liable’ means that the sentence of imprisonment is within the court’s
discretion but if the court decides to impose a prison sentence, then it shall be within the ambit
of the punishable section. In Abdul Seman, the relevant punishable section stated that the
accused ‘shall be liable’ to a ine not less than RM250. The Magistrate imposed a ine of RM100.
The High Court then held that the sentence was illegal as it exceeds the ambit of punishable
section. In Man bin Ismail, the court held that the phrase ‘shall be liable’ means the court has
absolute discretion whether it should award a sentence of imprisonment or to release the
accused under s294 CPC. A similar view is taken in Lee Ah Sam. In Hew Yew, the High Court
referred to the earlier cases and held that the court had absolute discretion to impose a
maximum sentence of 5 years or any lesser sentence, despite the minimum of each must not be
less than 2 years as per the relevant punishable section.

Essentially, the courts are still in con lict as to the meaning of ‘shall be punishable’. As per Philip
Lau Chee Hong, the High Court held that the phrase was mandatory in nature and the term of
imprisonment is ixed. Thus, the court had no discretion but to impose such sentence and
cannot bind over. This was af irmed in Leonard Glenn Francis.

However, Chew Chee Wah shows that ‘shall be punished with’ per se does not make
imprisonment mandatory due to the phrase ‘instead of sentencing him at once to any
punishment’. Thus, as per Lim Hong Chin, the wording allows the court to have discretion to
impose imprisonment, or ine or both or bond of good behaviour.
f
f
f
f
f
f
f
f
f
f
 Yet, the accused in Mohamed Nor was charged under s298A PC which provides that the
accused shall upon conviction be punished with imprisonment for not more than 5 years. The
High Court ordered that a binding over under s294 CPC be granted to the accused despite the
phrase ‘shall be punished’ in the punishable section. On appeal, the Supreme Court held that
although the sentence was lenient, as a matter of principle, the sentence of a lower court is not
to be disturbed unless manifestly wrong. Thus, the Supreme Court indirectly con irming the
correctness of granting the binding over under s294 CPC, despite the wording used in s298A
PC.

By looking at the words of s294 CPC, perhaps it would be better to say that the court is not
precluded from making a binding over order under s294 despite the phrase of ‘shall be
punished with imprisonment’. Thus, the Magistrate still has a discretion to sentence under s294
provided the conditions under s294 are satis ied, i.e. the character, antecedent, age, health and
mental condition of the accused as well as the trivial nature of the offence to the extenuating
circumstances surrounding the offence committed.

Invoking s294 CPC, i.e. granting a binding over order gives the accused an opportunity to turn
over a new leaf. However, if the accused breaches the terms of the binding over within the
speci ied period, he would be brought back to the court for the subsequent offence committed
and will also be dealt a heavier sentence for the earlier offence.

By virtue of the CPC (Amendment) Act 2016, s294(6) provides that s294 shall not apply if the
offender is charged with a serious offence or the offender is charged with the commission of an
act of domestic violence as de ined under s2 of the Domestic Violence Act 1994.

Serious offence means an offence where maximum term of imprisonment that can be
imposed is not less than 10 years.

Age of Offender

i. Tukiran bin Taib v PP, the court opined that 1st offenders who are between 17-21 years
old should not be imprisoned but should be sent to an approved school such as Henry
Gurney School. However, in PP v Yap Huat Heng, the aim of punishment or the gravity of the
offence should be given priority rather than age.
f
f
f
f
 First Offender

i. The court might consider s.294 for irst time offender that due to extenuating factors or
other factors described in s.294 that X may be released on probation of good conduct. Such
as the case of PP v Lim Hong Chin, where accused pleaded guilty and the magistrate made a
binding over under s.294 with two sureties in the sum of RM 5,000 and was also bound to be
of good behaviour for a period of 3 years. However, there are cases where irst time offender
is not a factor due to public interest and sentence may be increased like in PP v Alfred a/l
Vincent
ii. Mark Koding v PP, the accused, a member of parliament, was charged with sedition.
Mohamed Azmi J said that being a 1st offender was a strong mitigation factor and the accused
was released on a good behavior bond.
iii. PP v Yii Ching Wui @ Yu Ching, the accused was 64 years old when he was charged with
murder of his wife. He was a irst offender and coupled with his age and depression, the
court reduced his sentence.

Not a factor to reduce sentence

i. PP v Leo Say & Ors, a clean record of the offender is not a powerful factor to consider for a
grave offence such as culpable homicide not amounting to murder in this case
Plea of Guilty

i. A plea of guilty is a strong mitigating factor as it saves time and costs. A guilty plea is a
mitigating factor. Before passing sentence, the court is required to call for evidence or
information on the background, antecedent and character of the offender.
It is not a right or a general practice to reduce 1/3 of the prison term when the accused
pleaded guilty. The offender is given the credit or a discount for a guilty plea and does not get
the maximum sentence imposed by law. The right to impose sentence is at the discretion of
the trial court.
ii. Sau Soo Kim v PP, the federal court considered the accused’s guilty plea although the
offences were serious offences.
iii. However, in the case of Christopher Khoo Ewe Cheng, if the accused pleads guilty
normally 1/3 of the prison term will be reduced. However, in this case, the mitigating factor
were not considered because of the gruesome killing.
iv. A guilty plea does not reduce the sentence in cases such as Ismail bin Rasih and Ang Chai
Seng, due to the interest of the public and they are serious offences.
Effect of Conviction and sentence

i. PP v The Ah Cheng- the accused pleaded, inter alia, that he was employed and had to
support an aged mother and step-brothers. Abdoolcader J said that he should have thought
about this before he committed the offences and not after.
ii. PP v Loo Choon Fatt- it was said that the court should not be moved by the mitigation plea
of the offender on the adverse effect on his family. The correct approach is to balance
between the interests of the public and that of the offender.
iii. PP v Mahanthiran a/l Durasamy- where the accused was charged with several drugs
offences, also held that: “..unfortunately the effects of the accused’s wrongdoing have been
felt by those nearest and dearest to him, his daughter, aged mother and siblings. Only the
accused can bear blame for this. The hardship suffered by the accused and his family is not
therefore a factor that can be given signi icant weight.”
iv. PP v Vijya Raj- the accused, a headmaster, was sentenced to 1 day imprisonment and a
ine of RM2,500 for misappropriation of school funds. The fact that the accused would lose
his job and the humiliation he would suffer was considered in deciding on the sentence.
Circumstances before commission of offences

Drunkness
Raja Izzuddin Shah- accused was repentant and remorseful over his act, and paid RM200 as
compensation to the victim as well as cooperated with the police.

Provocation
PP v Ahmad Khairul Fa’ais bin Mat Dahlan- this may be raised in the defence of murder or
in mitigation.
f
f
f
f
f
 The Gap Principle

i. Previous convictions are taken into consideration only if they are of similar nature with the
present offence. If there is a clean record for a few years after the last conviction, then it is a
mitigating factor. The rationale is that the offender has attempted to rehabilitate.

ii. Zaidon Shariff v PP, opined that: ‘in any event the fact that there has been a ten-year gap
in the appellant’s criminal record has not been duly appreciated by the learned Magistrate.
The appellant’s clean record since his last conviction in 1986 ought to have operated as a
mitigating rather than as an aggravating factor. The rationale of the gap principle is that the
offender has made an effort to rehabilitate himself and it should according operate in his
favour.

iii. Soosainathan v PP, the High Court held that the gap between a previous conviction and
the present offence should be viewed as a mitigating factor rather than an aggravating factor.
The longer the gap, the greater the mitigating factor.

iv. Mogan Maruthamuthu v PP, the sentence was reduced because there was a 16-years gap
between the previous and present conviction of the accused for the same offence of drug
possession.

v. Vijeyan Kunjoo v PP, the court applied the gap principle as there was a gap of 8 years
between the present conviction and previous conviction.
Family Background

Lee Yoon Fah v PP- the court considered the family background of the accused and how the
accused was also training to become a motor mechanic. After considering such antecedents,
the court ordered s.294 to be applied to the accused here.

This was re lected in PP v Loo Choon Fatt, however the court also held that cannot simply
exercise their discretion just because the accused has regretted what he has done, discretion
must be exercised responsibly and should not be misled or misplaced by some sense of
leniency or sympathy.

K. Mitigation and Aggravation

The court has discretion to make appropriate sentences to an offence, including mitigation and
aggravation. Mitigation is allowed after conviction and before judgment. Before sentencing, the
court has to consider the mitigating factors which are available to the accused to move the court
to pass a lenient sentence.

If the accused pleads guilty, it will be a strong mitigating factor as it saves the court’s time and
cost. In Sau Soo Kim, the guilty plea of the accused was still considered in mitigation even
though the offences involved are serious offence, i.e. attempted murder and unlawful
possession of irearms. Generally, if the accused pleads guilty, a reduction of the prison term by
1/3 is normally made. However, in Christopher Khoo, the mitigation factor was not considered
due to the gruesome killing.

Besides, the court may consider other mitigation factors, namely, the age, previous record,
circumstances before and after the commission of offence, effect of the sentence, the gap
principle, the health of the accused etc.

Tukiran v PP shows that the court held that 1st offenders who are between 17 and 21 years old
should be sent to Henry Gurney School instead of being imprisoned. However, PP v Yap Huat
Heng shows that the above view is not followed, and courts usually not consider age as priority
but the aim of punishment and the gravity of the offence.

There are con licting cases as to whether a clean record would mitigate the accused’s sentence,
it was shown that it would in Abdul Karim v R, Mark Koding v PP whereas PP v Leo Say and
f
f
f
 PP v Oo Leng Swee show that 1st offender is not a mitigating factor due to public interest, and
sentence may be increased.

As per PP v Teh Ah Cheng, the court held that the effect on the accused’s family will not be
taken into consideration as one of the mitigating factors as the accused should have thought
about this before committed the offences, and not after. This was also af irmed in PP v Loo
Choon Fatt where it was held that the correct approach is to balance between the public
interests and that of the offender.

As per Zaidon Shariff v PP, the gap principle is a good mitigating factor as its rationale is that
the offender has made an effort to rehabilitate himself. Similarly, per Soosainathan v PP, the
longer the gap, the greater the mitigating factor.

Furthermore, the court has to take into account any aggravating factors; it is the PP’s duty to
press for higher sentence.

Firstly, the sentence is usually heavy as a deterrence for prevalent and rampant offences, e.g.
theft, rape, drug offences, as per Lee Chow Meng v PP where the court passed consecutive
sentences. However, in Sia Ah Kew v PP, the Singapore Court of Appeal reduced the death
sentences to life imprisonment as the kidnappers treated the victim kindly. Notably, if force or
violence is used to commit the offence, usually a very heavy sentence and whipping will be
imposed as per PP v Sa ian.

Besides, the status or position of the offender has been held to be an aggravating factor as per
Datuk Harun Idris v PP, the Federal Court enhanced the sentence of the accused, who was the
Menteri Besar of Selangor, as he should have shown a good example as a leader. Conversely,
there is also situation where the status of the offender was considered to be a mitigating factor
as per PP v Lim Kit Siang where the sentence of ine was reduced, otherwise he would be
disquali ied from being a member of Parliament.

Regarding previous convictions, the record is prepared by the prosecution and includes not
only a list of previous convictions but also the antecedents. The court in PP v Jafa bin Daud
enhanced the sentence as the accused who was liable for possession of heroin had 5 previous
convictions, 2 of which were for possession of drugs. However, Soosainathan v PP shows that
previous conviction cannot be given such weight as not every previous conviction is relevant
and proportionate to the gravity of the current offence.

Proviso to s173(m)(ii) for subordinate courts and s183A for superior courts allow the victim
or his family member to give a victim impact statement (VIS) by attending the proceedings or
may allow admission of a written statement, before the court passes the sentence. In passing
the sentence, the court shall consider such VIS in order to make a more appropriate order by
considering both the accused’s and the victim’s rights. The VIC would contain the trauma they
have suffered and the troubles resulted from the crime. As per Ahmad Rashidi, the High Court
enhanced the sentence as the victim in the VIS said she was traumatized by the incident. Yet,
following s173(b) CPC, there is no need for a VIC if the accused pleads guilty.
f
f
f
f
 Summary Trials
a. Courts jurisdiction for summary trial

The punishment for an offence under [SUBJECT] falls within the jurisdiction of the
Session Court. However, according to the case of Tengku Abdul Aziz, although s.173 CPC
uses the term ‘magistrate court’, s.173 is nevertheless applicable to the Session Court.

b. Read and explained

If there is 2 charges, the general rule is that one offence, one charge; one charge, one
trial. Thus, following the decision in Subramaniam v PP, each charge must be read and
explained separately and the same applies to the guilty plea.

s.173(a) provides that when the accused appears or is brought before the court, the
charge must be read and explained to him, and it must be done in the language the
accused understands.

It is the duty of the court to ind a competent interpreter, in the case of Fong Hung Sium,
the accused was a Hainanese but the interpreter was a Hokkien. Thus, it was not read
and explained in the language that the accused understood and hence it contravened
s.173(a) CPC.

c. Nature and consequence of his plea

s.173(b) provides that if the accused pleads guilty to a charge, whether as originally
framed or as amended, the plea shall be recorded and he may be convicted thereon and
the court “shall pass sentence according to law”.

Accused himself must plead guilty and not through his counsel as long as he
understands the nature and consequence of his plea as in the case of Leng Chow Teng.

A is to advised that the proviso of s.173(b) CPC provides before a plea of guilty is
recorded, he must understands the nature and consequence of his plea and intends to
admit without quali ication the offence alleged against him. The plea must be
unquali ied, unequivocal and unreserved as in the case of Munandu, Margarita B Cruz,
Cheah Chooi Chun.

Reference must be made to PP v Maragarita b Cruz, where the accused pleaded guilty
to possession of 2 passports without lawful authority and said that her friends asked her
to keep them for safety. The court held that the magistrate should have rejected her plea.
In other cases such as Cheah Chooi Chun and Munandu, the court also did not accept
plea of guilty as it was not unreserved and quali ied. The judge should have rejected the
guilty plea and set down the matter for hearing as there was clear breach of s.173(b)
CPC.

d. Brief facts

i. According to the case of Palan, after A has pleaded guilty, the court will not record a
inding of guilt immediately but will ask the prosecution to provide the brief facts of the
case, (aa) the brief facts should be a short summary of the facts and its length depend on
the nature of the charge and seriousness of the charge as held in Abdul Kadir bin Abdul
Rahaman v PP, and A would be asked whether he admits to the said facts. If he does, A
can adduce all the mitigating factors in his favour, and s.176(2)(r) CPC requires
mitigation to be recorded.

ii. Before recording of the plea and passing sentence, brief facts must be furnished
by the prosecution following the case of Palan, unless if the offence is simple, the facts
would be as per the charge. (aa)

e. Pass sentence according to law

Immediately after this, the prosecution will adduce the aggravating factors and the court
will then convict A and pass sentence according to law as provided in s.173(b), with
f
f
f
f
f
 reference to Jafa bin Daud, the phrase “pass sentence according to law” means that the
sentence passed must be within the ambit of the punishable section and assessed
according to establish judicial principles.

f. Accused himself must plead guilty

Reference must be made to the case of Lee Chow Teng, where the Supreme Court held
that any plea must in all cases be made by the accused personally, irrespective of
whether he is unrepresented or represented by counsel. This case was cited with
approval in Lee Weng Tuck. The only exception is where the charge is made under a
statute and that statute expressly allows the accused to plead guilty by letter.

If the facts and law are complicated, the plea of guilty shall not be accepted if the accused
is not represented by a counsel as the accused may not understand the nature and
consequences of the plea. Low Hiong Boon v PP.

g. Joint Pleas
Scenario: A & B jointly charged, A pleads guilty, but B claims trial.

A & B has been jointly charged. According to the case of Fong Siew Poh, the charge
against each accused must be read and explained separately and the pleas must be taken
separately. Since A pleaded guilty but B claims for trial. Reference must be made to the
case of Lee Weng Sang, the court held that it is not desirable to consider the guilty plea
of A until after the trial. However, according to Yap See Teck, if the prosecution is calling
A as a witness then the court would dispose his case irst. If not then the court can
consider A’s guilty plea until B’s trial as in Lee Weng Sang.

h. unsound mind
refer pg.78 (chart), pg.134-135 (Q&A book)

i. acquittal before prima facie stage (when investigation is incomplete)

At any time before the prima facie case, the court can only give a DNAA if the Court
considers the charge to be groundless by virtue of s.173(g) CPC. In Chu Chee Peng, it
was held that a charge is groundless if every cornerstone of the prosecution’s case
collapses. In PP v Ling Leong Kong, the SC granted a DNAA due to numerous delays and
absence of complainant. The HC upon revision held that before invoking s.173(g), the
Court should at least allowed the prosecution to continue with the case so that the Court
can evaluate the evidence and decide whether the charge is indeed groundless.

In PP v HLS Pereira, the court held that where the investigation was not completed, the
magistrate should discharge not amounting to acquittal and not to acquit as was done. In
Karumah, the court held that if investigation has been completed but the prosecution is
not ready to proceed (e.g. when prosecution witnesses are not available), then the
Magistrate should postpone the case.

However, if investigation has yet to be completed, then according to Tan Kim San, the
magistrate should grant DNAA. If the case has been postponed numerous times, the
Magistrate should also grant a DNAA and not a DAA because, as the court held in
Kuppusamy, the earliest stage where a court can acquit an accused is after hearing all
the evidence for the prosecution which is at the end of prosecution’s case. If the court
inds that the prosecution has not made out a prima facie case against the accused, the
court shall record an order of acquittal. (DAA)

Further pursuant to s.173(c) CPC, it provides that the court shall take all evidence in
support of the prosecution’s case. The Court cannot give an order of acquittal and
discharge, as it is only available at the prima facie stage.

j. Defence of Alibi s.402A, (formal notice)

f
f
i. With reference to the case of Vasan Singh, the court must decide whether what
the accused raises constitutes a defence of alibi or merely a bare denial. If it is a mere
denial, the accused does not need to adduce any evidence to support his defence;
however, a bare denial has little weight in court.

ii. if what the accused raises is a defence of alibi, then s.402A must be complied
with. This section of law has been amended via the CPC (Amendment) Act 2010 which
came into effect on 1st June 2012. A key phrase in s.402A is ‘evidence in support’ and on
the facts, the evidence in support of the accused would be [his brother’s testimony] that
he was else where at the material time. In order to rely on the defence of alibi, a written
notice must be given on the PP during case management. Before the amendment, notice
was mandatory to be given to the PP 10 days before the commencement of the trial.
According to Goh Tong, ‘commencement of trial’ refers to the actual trial itself or the
beginning of the contentious stage, i.e. at the point where the 1st witness for the
prosecution gives evidence.

iii. Since X intends to raise the defence of alibi, reference must be made to s.402A and
the contents of such notice prescribed therein must be effected in accordance with
s.402A(4). In Rangapula, the court held that the purpose of the s.402A notice is to
prevent an accused from fabricating evidence of alibi by enabling the police to
investigate the alleged defence and interrogate witnesses intended to be called in
support of the alibi defence well before the date of trial. This is to ascertain the validity
of such a defence. With the recent amendments, the judge has a discretion to admit
evidence even if the alibi notice is given during trial provided the PP is given reasonable
time to investigate the alibi before such evidence can be adduced.

iv. Pursuant to Krishnan, the notice of alibi need not be signed by the accused person
itself, but may be signed by a person with a power of attorney from the accused or the
accused’s solicitor. Furthermore, the court in the case of Ku Lip See approved the
decision in Lim Chen Len on the point that the court has no discretion to admit alibi
witnesses if there is no notice at all under s.402A. Therefore the requirement of a notice
under s.402A is mandatory in nature and this is re lected in Dato Seri Anwar Ibrahim.
In the case of Hussein bin Silit, the court held that the notice must be formal and distinct
notice to the PP; therefore a cautioned statement to the police, for example, would not
constitute a formal notice for the purposes of s.402A.

v. Hence, in order to raise a defence of alibi, a formal notice to the PP during case
management is mandatory.

k. Opening case for prosecution in High Court

- s.179(1) CPC, stipulates that the of icer which conducts the prosecution shall open his
case by stating shortly the nature of the offence charged and the evidence which he
proposes to prove the guilt of the accused.
- Prosecution has to outline the essential facts in an impartial and logical manner,
explain the charge and identify precisely what must be proved.
- Prosecution must identify the witnesses they intend to call to establish the facts of the
case, and the order the prosecution will call the witness
- It is prudent that the prosecution has to outline the facts to which they are in position
to prove by admissible evidence
- Prosecution must ensure the witness whom they mention are actually available at the
trial
- Statement made under s.179(1) must be statement essential to the facts upon which to
be relied but must not be longer than necessary
- It is also in the interest of justice that the prosecution should not withhold any
evidence which is favourable to the accused
- therefore the opening statement would be a brief indicator to the courts and also to the
accused person as to the direction to be taken by the prosecution in the conduct of the
case.
f
f
l. Expert Witness s.399 CPC

* Requiring attendance of maker of report

s.399 provides that a copy of the report must be given to the accused not less than 10
clear days before the trial; if the accused does not require the maker to attend, the report
may be tendered. If the accused decides to call the maker as a witness, the accused must
give notice to the prosecution at least 3 clear days before the trial.

*Reports (notice for presence of maker)

The issue is whether the prosecution’s exhibit in relation of the chemist report could be
admissible even when the accused remain silent. In Mohamed bin Abdul Rahman, the
court held that if the accused gives proper notice, which requires the presence of the
maker of the report, the prosecution must call him and must prove the case in the
ordinary manner. Nonetheless, the court stated that since the accused did not object to
the absence of chemist when the prosecution tendered the report, the accused was taken
to have waived his right; hence the report was held to be admissible. In contrast,
reference must be made to Chah Siew Kok and Ong Baw Seng where the court held that
as long as notice is given, the chemist should appear; furthermore, even if the accused
did not object when the maker of report was not called, the report is still inadmissible
because procedural rules were contravened.

* Retrial
Where a retrial is ordered and the prosecution tendered the same report contending
that there were no alterations to the report and that the defence had not give notice for
the presence of the chemist is highly prejudicial. In PP v Ooi Lean Chai, it was held that
a retrial could not be treated as a continuation of the irst vitiated trial. Whatever the
prosecution did during the earlier trial must be ignored as having no effect.

* Oral evidence of Expert Witness

In the case of Muhammed bin Hassan v PP, the Federal Court held that after the
prosecution has served a copy of the report on the accused pursuant to s.399(1), the
prosecution can still call the maker of the report as witness instead of relying on the
production of the report following the best evidence rule. However, if the maker is called,
the report cannot be a substitute for oral evidence but could be used to refresh memory
or as corroboration.

*if the chemist report is ruled inadmissible

For non-compliance with s.399(1), only evidence of the maker is considered. Safri bin
Koboy & Anor

* to dispense with the calling of the chemist

Naveen Raj Naidu Gunasegaran v PP, written consent of the parties to dispense with
the calling of the chemist is required as provide in ss.172A and s.172B.

m. Witness not called by prosecution to testify

i. Adel Muhammad El Dabbah v AG for Palestine, the prosecution has the

discretion to call any witness and the court will not interfere. In the case of Teh Lee Tong
v R, the court gave the following 3 propositions: -
- All prosecution witnesses should be brought to the court by the prosecution;
- The prosecution may choose which witness to give evidence
- The prosecution witnesses not called to give evidence must be brought to the attention
of the court and made available to the defence.

ii. Further according to s.173, the prosecution can call anyone as a witness as long
as the prosecution has not closed its case.

iii. s.114(g) provides that the court may presume that evidence which could be and
is not produced would if produced be unfavourable to the person who withholds it.
f
 iv. Abdullah Zawawi v PP, the prosecution’s right not to call a witness must always
be guided by its duty to discharge the onus of proof. If the failure to call a particular
witness give rise to a serious gap in seacthe prosecution’s case, then the prosecution
must close this gap, otherwise the adverse inference under s.114(g) EA will be made. It
is not for the defence to call the offered witness to close the gap.

n. When the court calls upon the accused to enter on his defence

s.173(ha)- 3 options: -
(i) Give sworn evidence in the witness box
- if the accused decides to give sworn evidence then he is subjected to examination-in-
chief, cross-examination and re-examination.

(ii) Give unsworn statement form the dock

- in Ip Ying Wah v PP, it was held that the court must consider the statement and must
assess the weight bearing in mind that the statement is not tested in cross-examination
and the accused is not sworn in or af irmed. The statement of the accused may contain
hearsay evidence or other inadmissible evidence.

(iii) Remain silent

- s.257(2) provides that silence shall not be made the subject of adverse criticism by the
prosecution. The prosecution has to legal burden to prove beyond reasonable doubt PP v
Yuvaraj. In Ahmad Najib Aris, in an appeal against conviction for murder, the FC held
that since the appellant did not rebut the evidence of the prosecution witnesses by
remaining silent, it warranted a conviction.

* Since a prima facie case has been found against accused, the court shall call the accused
to enter defence by virtue of s.173(h)(i). if the accused intends to give evidence he can
give sworn or unsworn statement by virtue of s.173(ha). It is provided in the proviso of
s.173(j) that if an accused elects to give evidence, his evidence shall be taken before that
of other witnesses for the defence. (s.181(1) CPC for HC)

Duty of Magistrate where accused is unrepresented enters defence

s.257 provides that when the Magistrate calls the accused to enter defence, he has to
make known to the accused on his rights to give evidence on his own behalf, if the
accused elects to do so. The Magistrate shall put the accused’s attention to the key points
of the prosecution so as to enable the accused to have an opportunity to explain it to
them. This is re lected in Kong Siang Ng v PP and Koh Mui Keow v PP.

By virtue of s.257(1), the trial judge should explain to the undefended accused on the
main point of undefended testimony so as to enable the accused to cross-examine the
witness.

In the case of Por Choo Aik v PP, the court held that the trial judge should also inform
the accused on his right to object unfair and take advantage of an undefended accused
person. Failure to follow the provisions laid down in s.257(1) does not necessarily affect
the hearing., If its clear that the failure does not adversely affect the accused.

Also in Shaari v PP, where failure to comply s.257 has not lead to any prejudice to the
accused, such failure does not amount to a miscarriage of justice within the meaning of
s.422.

o. Autrefois Convict/ Acquit s.302

- based on the facts, he is being charged with an offence for which he has been
acquitted. Reference must be made to s.302 CPC which embodies the basic principle
that no person shall be placed in double jeopardy. This is also re lected in Article
7(2) of the Federal Constitution.
- s.302(2) CPC provides however that one can be tried for a distinct offence. For
example, in the case of Jamali bin Adnan v PP, the accused who was previously
f
f
f
 convicted and sentenced for robbery with deadly weapon under s.392 PC could be
subsequently charged under s.57 ISA 1960.
- S.302(5) provides that discharge of the accused or a dismissal of a complaint would
not amount to an acquittal and so like in the case of PP v Chu Chee Peng where the
accused was discharged not amounting to an acquittal could be subsequently
charged for the same offence again.
- Further, in line with the common law principle of autrefois acquit, it is founded on
the principle that a man shall not be brought into danger of his life for the same
offence more than once as per the case of R v Kadir Khan.
- Nevertheless, it is to be ensured that before such a plea is made, the case of Datuk
Haji Wasli bin Mohd Said v PP provides that the accused must have been irst
convicted and sentenced or acquitted and discharged. The procedure is laid down in
s.303 CP

p. Prima facie case found on an offence other than charged

i. In relation to the amendment to the offence that the accused is charged with, the
test of Lew Cheok Hin must be satis ied namely that the offence that the accused is
convicted of now could have been framed from the commencement of the trial under
s.167 and that the courts are satis ied that looking at the original charge being framed
and the amended charge, the prosecution and defence could have raised the same issue
of fact and adduced the same evidence.
- The procedure for the amendment of charge is clearly stipulated in s.173(h)(ii) CPC
which provides that if the court inds that a prima facie case has been made out against
any offence other than the one that the accused is charged with, the court shall amend
the charge if the court is competent to try the matter and is in the opinion that it ought
to be tried.

ii. After amending the charge, s.173(i) must be complied with. It provides that once
a charge has been amended, it must be read to the accused who must be asked again
whether he wants to plead guilty of the offence in the amended charge.

iii. Reference must be made to the case of Juffri Hassin where the court held that
where a charge has not been suf iciently explained, the conviction may be set aside and a
retrial may be ordered. Further in the case of Fong Hung Siam v PP, the court held that
the charge should be read and explained in a language that the accused understands and
uses. It is the court’s duty to ind a competent interpreter.

iv. If the accused pleads guilty to the amended charge, pursuant to s.173(j)(i), such
a plea shall be recorded, the accused may be convicted thereon and the court shall pass
sentence according to the law.

v. A plea of guilty will not be recorded if the accused does not understand the
nature and consequence of the plea. As con irmed in the cases of PP v Cheah Chooi
Chuan, the court held that the plea must be unreserved, unquali ied and unequivocal.

vi. After a plea has been made, the court will not record a inding of guilt immediately
but will ask the prosecution to provide brief facts of the case. If it were a simple case,
facts would be as per charge. However, if the offence is complicated, the prosecution
should furnish other facts. This has been laid down in cases such as Abdul Kadir v PP
and Lian Kian Boon v PP.

vii. The accused will then be asked whether he admits to the facts. If he does not admit to
the facts, the court will reject the plea of guilt and set the case down for hearing, as in the
case of Lian Kian Boon v PP. if the accused admits to the facts however, the court will
record the inding of guilt and must be satis ied that the facts support the charge.

viii. It is worth noting that the accused may withdraw his plea of guilty at any time
before sentence is passed. PP v Jamalul Khair.

ix. After the brief facts has been given, accused would be allowed to forward any
mitigating facts to reduce the sentence that may be imposed on him. After the court
consider such factors, the court will pass sentence accordingly to the law as per the case
of Jafa bin Daud v PP.
f
f
f
f
f
f
f
f
f
f
f
 x. If accused does not plead guilty, he shall be called upon to enter his defence as
stated in s.173(j)(ii). Pursuant to s.173(ha) the court in this instance would have to
explain 3 electives available to the accused, namely, the right to give sworn evidence,
right to give unsworn evidence and the right to remain silent.

xi. Reference must be made to s.173(j)(iii) which provides that the accused is entitled to
recall and cross examine any witness present in court, provided that the accused
evidence shall be taken irst before that of other witnesses for the defence if the accused
elects to be called as witness.

xii. s.173(m) After hearing all the evidence at the defence stage, and at the conclusion of
the trial, the court shall consider all the evidence adduced by it and shall determine
whether the prosecution has proved its case beyond reasonable doubt. If the court is
satis ied of this, the court shall ind the accused and he may be convicted therein and the
court shall pass sentence according to law. If the court is however satis ied that the
prosecution has not proven its case beyond reasonable doubt, then the court shall order
an acquittal.

q. Taking of plea then refuse to Plead

i. Taking of plea
combine point (a), (b), (c), (e) above.

ii. Refused to Plead

Reference is made to s.173(c) wherein the Court shall proceed to take all such evidence
as may be produced in support of the prosecution’s case. In PP v Zainudin, the Court
said the term ‘to take all such evidence’ is all evidence that the prosecution intends to
bring to support its case.

Prosecution witness will be allowed to cross-examined by the accused as provided for in

s.173(e). In this regard, the prosecution has discretion to call witnesses and the court
will not interfere. Further, in Teh Lee Tong, the court held that although the right to call
witnesses is the discretion of the prosecution, but if the prosecution’s evidence falls
short of proving a prima facie case, failure to call important and material witnesses may
cause an inference under s.114(g) EA to be invoked.

Once the prosecution’s case has concluded, the Court will consider whether the
prosecution has made out a prima facie case as stated in s.173(f). A prima facie case is
made out against the accused where the prosecution has adduced credible evidence
proving each ingredient of the offence which if unrebutted or unexplained would
warrant a conviction as provided in s.173(h)(iii).

If court inds that the prosecution has not made out a prima facie against the accused,
the Court shall record an order of acquittal. If the charge is groundless, reference is made
to s.173(g) and the accused will be discharged not amounting to an acquittal as
illustrated in Chu Chee Peng. If a prima facie case is made, the defence will be required
to enter defence s.173(h)(i). he has 3 options under s.173(ha) if he is called to enter
defence. if a prima facie case is found for an offence other than charged the court may
amend the charge, which will be read and explained to the accused. S.173(h)(ii)

r. Change of Magistrate (pg.70 chart)

- s.261 provides that whenever any magistrate after having heard and recorded the
whole or any part of the evidence in a trial ceases to exercise jurisdiction therein and
is succeeded by another magistrate, the magistrate so succeeding may
(i) act on the evidence so recorded by his predecessor; or
(ii) act on the evidence partly recorded by his predecessor and partly recorded by
himself; or
(iii) re-summon the witnesses and recommence meaning a new trial will be held.
- Chelliah v PP, it was held that if a new trial is held, then the accused may demand
that any witness be re-summoned and re-heard and the magistrate must comply.
f
f
f
f
f
 - PP v Kulasingham, Hasim Sani J said that a magistrate who is transferred to be a
federal counsel or a DPP may complete any part-heard cases originally heard by him
instead of starting a new trial provided there is no miscarriage of justice. In this case,
a large number of witnesses had been called and exhibits produced, and a prima
facie case had been established.
- Oh Keng Seng v PP, the trial was still during the prosecution’s case when the
president of the sessions court was transferred to be a DPP but the president
continued to hear the case. On revision by the High Court, Ajaib Singh J refused to
follow Kulasingham and ordered a trial de novo by a new president.
- -Teay Wah Cheong v PP, it was held that it is better for the new president or
magistrate to hear the case ab initio in order to assess the credibility of the witnesses
rather than taking over the recording of the evidence from his predecessor.
- Lai Weng Keat v PP, where the demeanour and credibility of the witnesses who had
given evidence are crucial or an issue, the new magistrate or judge has to hear the
case de novo or recall the relevant witnesses. However, the succeeding Magistrate or
Judge need not hear the case de novo and can act on the evidence recorded by his
predecessor where the facts of the case are straightforward and the credibility of the
witnesses are not crucial.

s. Adjournment s.259

- s.259 provides for the court’s power to postpone or adjourn proceedings. It allows
proceedings to be postponed or adjourned due to the absence of a witness or
because of any reasonable cause. The term ‘reasonable cause’ is interpreted by Raja
Azlan Shah J in the case of Tan Foo Su v PP where it is a term of art for lawyers and
no de inite ruling can be laid down.
- PP v Taangaah, the court held that the policy of law is that criminal cases should be
disposed of with the least possible delay and that public interest demands that
criminal justice should be swift and sure that the guilty be punished while the events
are still fresh in the minds of the witnesses. It was further held that adjournment of a
trial is a matter for the discretion of the court and should be exercised judiciously.
More importantly, the term ‘reasonable cause’ be strictly interpreted where it is not
enough that reasonable cause exists, such cause must be stated in the order itself so
that the accused know the cause but also the appellate court as to able to form an
opinion as to its reasonableness.
- It must be noted that trial dates are irst come- irst serve basis and where the trial
dates are already ixed by court, counsel should not accept briefs which clash with
those date as in PP v Mohtar bin Abdul Latiff.
- Kahar ak Tongah v PP, it was held that in cases where the accused has been given
suf icient time to seek legal representation, if counsel accepts a brief at the last
minute, he should be prepare to proceed with the hearing and counsel cannot
complain in the event a request for an adjournment is refused.
- The courts are further guided by the Practice Direction 1/2019 as to granting of
adjournments. Some guidelines inter alia, counsel on vacation or attending a course
or seminar without informing the court in due time is not a good reason for
postponement; no further postponement if the case has long been registered and has
been postponed may times.

Cases

i. Lee Fook Sam, the court refused postponement to change counsel for the fourth
time.
ii. PP v Mohtar bin Abdul Latiff, on revision of the case, the High Court stated that
there were too many postponements for the convenience of the counsel and the case
was set down for an early hearing.
iii. PP v Low Yong Ping-the absence of the prosecution witness who had to attend a
High Court case was a reasonable cause.
f
f
f
f
f
 iv. PP v Tan Kim San, the magistrate granted a postponement as the investigation
was not completed. On revision, Harun J said that the magistrate should under s.173(g)
discharge the accused not amounting to acquittal as the charge was groundless.

t. Withdrawal of Plea

The accused may withdraw his plea of guilty at any time before the court is functus
of icio, i.e. before sentence is passed as in the case of Lee Weng Tuck. The court has
discretion to allow withdrawal before the court is functus of icio, the court has to
exercise its power judicially and on valid grounds. In New Tuck Shen v PP, the court did
not allow the accused to withdraw his guilty plea as he was caught red-handed by the
Biro Siasatan Negara and had no defence.

u. Power of Court to summon and examine person s.425

- s.425 provides that any court may summon any person as witness or examine any
person not summoned as witness or recall or re-examine any person already
examined and court shall summon and examine or recall or re-examine any such
person if his evidence appears to it essential to the just decision of the case.
- This section was interpreted to consist of two limbs by the Supreme Court in Ramli
bin Kechik. The irst limb is the court has discretion to summon any person as a
witness; or examine any witness in attendance, though not summoned as witness; or
recall or re-examine any person already examined.
- Whereas the second limb is where the court has duty to summon and examine or
recall and re-examine such person if his evidence appears essential to the just
decision of the case.
- In PP v Phon Nam, the DPP’s application to call fresh witness at the end of the
prosecution’s case was refused by the trial court but the Supreme Court ordered a
retrial as the High Court was bound to admit fresh evidence for the just decision of
the case.
- Bakar bin Saad and Ramasamy, the court held that although s.425 empowers the
court to call evidence at any stage of the trial there is a clear and distinct limitation
on the discretion of the Court.
- Loh Ek Boon, the High Court rightfully rejected the application to call fresh witnesses
on the ground that the evidence of such witness was not essential to the just decision
of the case.

V. Defence making submission at the end of prosecution case (summary trial)

- It is the usual practice for the defence to make such submission. In PP v Ong
Khoon Seng, the court held that although there is no express provision in the CPC for
permitting the defence to make submission or for the trial court to hear submission at
the close of prosecution case. The practice of the court in this country has always been to
allow parties to make submission and it has been the principle in court and practices
that the defence counsel and DPP as of icers of the court to assist the court.
- A similar view was taken in Ang Koon Theik and Chong Boo See. In the recent
case of Wong Kok Wah, the court held that the right for prosecution to submit in a trial
is a matter of discretion of the court unless the accused gives evidence or call witnesses
to give evidence on his behalf in which case the accused and his counsel will sum up the
case. Further the court is of the view that if one party is allowed to submit, then the
other should be allowed to submit as it is the fundamental importance that justice
should be done and manifestly seen to be done.
- However in Lee Kwan Woh, the Federal Court is of the view that the constitution
guarantees a right to the accused to a fair trial which includes his right to give a
submission of no case to answer at the end of prosecution’s case. The Federal Court held
that the accused may waive his right but he cannot be deprived from it as such right is
provided in Article 5(1) of the Federal Constitution. What the trial court must do at the
end of prosecution’s case is to invite submissions from the accused. Then it is open to
the accused to state that he does not wish to make a submission. Therefore, the trial
court cannot lawfully deprive the parties the opportunity to make submissions at the
prima facie stage.

High Court
f
f
f
f
 - An accused person has the right to submit at the end of the defence case in a trial
before the HC by virtue of s.181(1). He may submit after examination and cross-
examination of defence witnesses. The accused may also make submission of no case
to answer.
- In Low Thim Fatt, the issue is whether the defence counsel is entitled to make
further submissions where the accused has elected to remain silent and no further
witnesses were called thereto.
- The court held that it was proper in refusing the counsel to make any further
submissions after the defence was called since the counsel for the defence would
have nothing further to submit. In the case of Chong Boo See, the court held that the
court has the discretion to not allow the defence to make a submission of no case to
answer if the case for the prosecution is very strong.
- However such view has been overruled by the FC in Lee Kwan Woh as it is a
constitutionally guaranteed right of an accused to make a submission of no case to
answer. In the case of PP v Sanasi, the court held that the accused does not have the
right to make any submission if the accused elects to give unsworn statement from
the dock since such statement does not carry any evidentiary weight.

w. Use of Handcuff

Reference is to be made to the case Ramanathan Chelliah in relation to the use of

handcuffs in the accused’s dock. In that case, the court held that an accused is presumed
innocent until proven guilty and it is not normal practice to put any restrain where the
accused appears in court. However, the court was also of the view that some form of
restrain is necessary where the accused is violent or has been accused of a violent crime
and may also attempted to escape. Hence applying Ramanathan, handcuffs should be
used on accused if he attempted to escape or he is danger to the public.

X. Securing attendance of a key witness s.118

In relation to securing the attendance of a key witness, reference will be made to s.118.
The prosecution may apply to require such a witness to execute a bond to appear before
the court and to give evidence against the accused.

If the said witness refuses to execute such bond, the prosecution may apply for a warrant
to secure the attendance of the witness to give evidence against the accused s.118(3). In
this regard, the prosecution may request the court to give an early date for trial in order
to record the evidence of the witness who is about to leave the country.

Under s.396(1), where it is likely that the attendance of a person who is to give evidence
cannot be procured without an amount of delay or expenses which under the
circumstances of the case appears to the Court unreasonable; or a person who is to give
evidence may become incapable of giving evidence; the PP may make an oral application
to the court for the production of that person before the court for the purpose of
recording that person’s evidence on oath.

Further, the witness may also be required to swear an af idavit before the Magistrate.
The said af idavit may be used in the criminal court and the court shall take judicial
notice of it; this is pursuant to s.424 CPC.
f
f
 Y. Pre-trial conference

The aim or purposes of the pre-trial processes are for a speedy disposal of cases,
and balance the rights of victim and accused. Further, it reduces the cost to maintain the
prisoners. It is an ef icient and expeditious criminal justice system.

s.172A provides that an accused who is charged with an offence and claims to be
tried shall, by an advocate representing him, participate in a pre-trial conference with
the prosecution before the commencement of the case management.

A pre-trial conference shall commence within 30 days from the date the accused
was charged in court or any reasonable time before the commencement of the case
management. A pre-trial conference may be conducted by any means at any venue. All
matters agreed upon shall be reduced into writing and signed by the accused, the
defence counsel and prosecution. in Naveen Raj Naidu, since the agreement not to call
the chemist was not in writing, the agreement was not valid.

Z. Demeanor of Witness

s.271 provides that a presiding magistrate recording the evidence of a witness

may, at the conclusion of such evidence and at the foot of the notes, record such remarks
as he thinks material respecting the demeanor of such witness whilst under
examination.
Low Toh Cheng- the magistrate is entitled to disbelieve a witness and usually
has to give reason for his opinion. Duty of
Tara Singh v PP- An impression of the demeanor of the witness should only be
adopted by a trial judge after testing it against the totality of his evidence.
Tengku Mahmood v PP approved the principle in Tara Singh and said that the
demeanour of a witness is not always the touch-stone of truth but only one of the
ingredients in the inding of credibility of the witness.
f
f
 Transfer of cases
a. Transfer of case by Magistrate or Session Court Judge s.177 CPC

- By virtue of s.177, the Magistrate has the power to transfer the case to a court of
higher jurisdiction than his own; such a proper court would be the session*
- The prosecution can apply to the session court judge at any stage of the proceedings
under s.177 for the case to be transferred. It is important to note that s.177 also
applies to the session court although the provision only mentions ‘Magistrate Court’:
this interpretation was af irmed in Tengku Abdul Aziz. *
- s.177A, PP’s consent must be obtained to institute prosecution in the HC.
- PP v Oladotun Umaru, before the Magistrate can transfer the case to the HC, PP
must consent to it. The PP need not act personally; his deputies may consent on his
behalf.
- Requires ground to be put forward by the prosecution before the transfer

b. Transfer of case under s.417 by the prosecution/ accused

- Prosecution could apply to the HC under s.417 for the case to be transferred to the HC
from the Session Court. S.418 provides that an application to transfer the case under
s.417 shall be by way of motion.
- Accused may apply to the HC under s.417 for the case to be transferred to the HC from
the Session Court. S.418 provides that an application to transfer the case under s.417
shall be by way of motion and shall be supported by af idavit stating the grounds for
transfer. *

Grounds for Transfer

The High Court may transfer the case if it opines that: -

i. s.417(1)(a): fair and impartial trial cannot be had in any subordinate court.
ii. s.417(1)(b): some question of law of unusual dif iculty is likely to arise.
Oh Keng Seng, the High Court held inter alia that the word ‘unusual’ means that the
dif iculty in relation to the law must be such that either the question of law is one which
is unique or out of the usual/ordinary which has not been dealt before by any court.
Wong Hong Toy, the court rejected the application to transfer the case to the HC under
s.417(1)(b) as it found that there was no question of unusual dif iculty involved.
Dato Kee Yong Wee, even if a question of law of unusual dif iculty were to arise, the
session court would be competent to try the matter, since Session Court judges are
professionally quali ied and have not less than 7 years’ standing in the legal and judicial
service with some even having between 11 to 20 years’ experience. Therefore, it is
unlikely that an application based on s.417(1)(b) would be successful.
iii. s.417(1)(c): the place of the trial should be near the scene of the crime;
iv. s.417(1)(d): the place of the trial is convenient for the parties or the witnesses; or
v. s.417(1)(e): expedient for the ends of justice
Oh Keng Seng, this phrase is very wide and may include grounds outside the other
paragraphs in the provision, and may cover the necessity of a transfer to secure justice
and a fair trial. However, the courts are reluctant to exercise their powers under this
provision.
f
f
f
f
f
f
f
c. Transfer of case under s.418A and s.418B (PP personal power)

- it would be convenient for the PP to invoke s.418A which provides for the powers of
PP to transfer via issuance of a certi icate any particular case triable by a
subordinate court to a High Court speci ied in the certi icate in which the proceeding
is to be instituted, or transfer or cause the accused person to appear or be produced
before such court. This power must be exercised personally by the PP. *
- Reference must also be made to s.418B which provides that s.418A shall apply to
cases triable under the CPC provided that the accused person has not pleaded guilty
and no evidence in respect of the case against him has been adduced. *
- Dato Seri Anwar Ibrahim, application of s.418A can be seen in this case where the
charges were initially brought in the Session Court but was transferred to the HC
upon issuance of a certi icate by the PP. *
- Under s.418A, it is the proceedings that is transferred when a certi icate is issued
under that section and not the charge, therefore a transfer under this section does
not preclude the charge from being amended. *
- Datuk Haji Wasli v PP, the COA held under s.418A, the PP is not empowered to
transfer a criminal case from Sabah and Sarawak to Peninsular Malaysia.
- Subjecting s.418A to s.22 CJA 1964 would lead to a reading that they allow the PP to
only transfer cases from a court of subordinate to the jurisdiction of the HC which is
either local jurisdiction of the HC in Sabah and Sarawak or the HC in Malaya.

d. d. s.41A DDA 1952 accused brought before the magistrate

When an accused person is charged for drug traf icking under s.39B DDA 1952 is
produced before a Magistrate for mention, reference must be made to s.41A DDA 1952
where it governs two special provisions for transmission of cases. Matter which are
triable exclusively at HC such as s.39B DDA 1952 or matter which are required by the PP
to be tried by HC such as s.12 DDA and s.15 DDA.

In Ang Kee Cheng, it was held that PP must consent for a charge under s.39B DDA
before the case is transmitted to the HC pursuant to s.41 DDA.

Cases which the PP requires them to be transferred to the High Court are offences such
as ss.12 and 15 DDA 1952. The requisition of the PP must be tendered in the court.
There is no requirement of the consent of the PP.

When the accused is brought before the Magistrate’s Court, the charge shall be read and
explained to him. However, he shall not be called upon to plead. Even if he chose to make
one, the plea will not be recorded. After the charge is read and explained, the court shall
then transmit the case to HC. The accused shall then be brought before the High Court as
soon as practicable.
f
f
f
f
f
f
Appeals and Revision

Appeals & RevisionAppeal to High Court – Chapter XXX

Types: (1) Appeal from SC to HC (Section 26 CJA); (2) Appeal from HC – exercising original
criminal jurisdiction to COA or Appeal from HC – exercising appellate & revisionary jurisdiction
to COA (For question of law); (3) COA to FC. Special Case: Appeal from MC toCOA – leave
from COA (S. 50 CJA).

General Rule: All action from lower court can appeal to HC.

PROHIBITIONS : Section 304, 305, 306 CPC

* Section 305 CPC: Prohibit convict to appeal against his own conviction if had pleaded guilty to
charge.
Presumption: Offender plea of guilty is an impeccable one, explained on content of charge &
consequences of plea. Can appeal on LEGALITY of sentence (e.g S.289/punishment
not provided/appropriation of sentence) or CONVICTION (only if he does not understand
the nature and consequences of his guilty plea).

Municipal Commisioner v Chuah Seng: Pleaded guilty to offence of rearing pigs in premise
but the offence was rearing pigs in premise which are near a street. Offender pleaded guilty to a
non-offence = appeal against conviction granted.
Lee Yu Fah: appeal allowed although conviction based on plea of guilty because
ACCEPTANCE of the plea was questionable. Judge needs to be satisfied that other provisions
leading to acceptance of the plea of guilty had been complied.
Azizan Bin Salleh: Pleaded guilty & fined – but DPP appealed – Magistrate rejected NOA asit
was not properly filed: Not specify appeal on sentence or legality of sentence = Not in line with
Section 305. Ajaib Singh J: NOA is adequate to bring an appeal under S.305 but inpractice,
need to specify for clarity.
Mohd Dalhar Redzwan: HC no appellate jurisdiction to hear appeal on conviction by plea of
guilty, may use revisionary power to set aside illegal conviction.

* Section 306: Allow appeal against acquittal by accused person only with sanction by PP

* Requirements for s.307

Section 307: Allows “any person” who is dissatisfied with any “judgement/sentence/order” by
any MC in a “criminal case or matter” may prefer an appeal to HC.

(i) “Any person”:

Rudguard: “Any person” includes PP. Section 378: DPP, Police Officer not below the rank of
inspector, advocate authorised by PP or DPP.

Public Finance Berhad: the ‘person’ must be a party to the criminal case.

(ii) “Judgement, sentence or order” :

Maleb bin Su & Ang Gin Lee: ‘Order’ must be final order as in a judgement or sentence. Test=
whether it finally disposes of the rights of the parties.

PP v Raymond Chia: Supreme Courtheld Order under Section 51 CPC was a final order and
was appealable under Section 307.

(iii) “A criminal case or matter”:

Armand v Home Secretary: a case or matter is criminal if it results in conviction and

punishment.

Appeals and Revision

a. No Ground judgment

- The appellate court rarely interfere with the conclusion arrived by the trial court as stated in the
case of PP v Lim Kuan Hock. In the case of Ahmad Shah v PP, the court held that it is not the
practice of a court sitting on appeal to refuse to accept findings which depend on an
assessment of the credibility of a witness. The appellate court would only interfere with the
finding of fact where the finding of fact is unsupported by evidence. This has clearly been
reflected in the case of PP v Dato’ Yap Peng, where a finding of fact would be subjected to
intervention where there is a serious error or where the verdict being one where no reasonable
tribunal could have arrived at.

- The ground of decision must convey a reasoned judgment based on fact and law and not
merely a conclusion arrived at, as stated in the case of Balasingham v PP. There is a duty,
following the Court of Appeal decision of Hong Leong Equipment on the part of the judge to
furnish the reason for his decision.
- in the case of PP v Abang Abdul Rahman, it was held that the Magistrate should
discuss and evaluate the probability of the case. The reason of finding should be stated and
grounds indicating that he has applied his mind to the evidence provided in the case. The
absence of reasons would indicate that such vital consideration has the weight of the evidence
and the probabilities of the case may not have influenced the mental process of the trial judge in
arriving at the final finding as reflected in the case of Balasingham v PP.
- in the case of PP v Ma’arif, it was stated that there is a distinction between the finding of
a specific fact and a finding of fact which is an inference drawn from facts that are specifically
found. In the case of a finding of fact, the appellate court will be more ready to form an
independent opinion than in a case of finding of a specific fact which involves the evaluation of
the evidence of witnesses, particularly where the finding could be founded on their credibility or
bearing.
- In the case of PP v Vijaya Raj, it was held that it is the duty of the court on appeal to
review all evidence presented before the lower courts and if there are certain material of facts
that has been missed or improperly considered then the judge should not hesitate from
performing his duty as a judge of facts and to further consider and weigh these facts and to
decide whether these facts could have altered their judgment in one way or another.
- In relation to the mode of delivery of judgment, reference must be made to s.273 CPC
which clearly stipulates that until and unless a judgment complies with this requirement, it will
not amount to a judgment. Scanty grounds of judgment in the sense that there was only sketchy
references to the evidence with no specific finding of fact and no reasoned judgment is not in
compliance with s.273 CPC can actually amount to a good ground of appeal.
- Discuss procedure to file for an appeal.

b. Transmission of the appeal record and fixing the date of hearing of the appeal s.308

- When accused has complied with s.307, s.308 provides that the court appealed from shall
transmit to the High Court, PP and the advocate of appellant the appeal record, which
consists of a signed copy of the record of proceedings, grounds of decision, notice of appeal
and petition of appeal. If the judge accepts the appeal he shall then hand the appeal record
to the registrar to set down for trial and the registrar shall give notice of the hearing date of
the parties.

c. Hearing of an appeal

- s.313 lays down the procedure at hearing and s.314 lays on the effect of non-appearance of
the respondent. The following three situations may arise i.e. (i) all parties are present; (ii) the
appellant is absent; (iii) or the respondent is absent.

i. Where all parties are present at hearing, s.313(1) provides that the order of submission
will be the appellant shall be first heard in support of the appeal, the respondent shall be heard
against it, and the appellant shall be entitled to reply. The judge may then either at once give his
judgment in open court or reserve his judgment for another date s.318.
ii. Where the appellant is absent, s.313(2) provides that the Court may either consider the
appellant’s appeal and make such order it thinks fit or refuse to consider the appellant’s appeal.
iii. Where the respondent is absent, the court would invoke their powers under s.314 CPC,
if the court is not satisfied that the notice of appeal was duly served on the respondent, the court
shall adjourn the hearing and shall order that the notice be served on him by the registrar.
- s.314(2) provides that if the court is satisfied that the notice cannot be effected on him,
then it shall proceed to hear the appeal in his absence.
- However, s.314(2) appears to be harsh where the accused-respondent has been
acquitted and fails to appear in the hearing of appeal against the acquittal by the prosecution.
Reference has to be made to the case of PP v Goh Thor Kian which held that if a respondent
does not turn up, s.314 CPC should not be applied to a person who has been acquitted, as it
would be violating the principle of audi alteram partam, namely a right to be heard. In other
words, there would be a breach of natural justice in such situation.
- further, looking at the legislative history, s.314 CPC was enacted where the prosecution
was a respondent and its not a situation where the respondent is an acquitted person. The court
further held that it should not act in vain and there is no point in proceeding in a hearing
involving an acquitted person.
d. Filing of Notice of Appeal

● S.306 CPC provides that if it is an appeal against acquittal of the accused person, the written
sanction of the PP must be obtained.
● Accused is advised to file the notice of appeal with the clerk of Magistrate’s Court within 14
days from the date of judgment, sentence or order, as provided in s.307(1). The computation
of 14-days period is according to Kentucky Fried Chicken v Lembaga Bandaraya Petaling
Jaya, where the court held that under s.54 Interpretation Act 1948 and 1967, a period of
days from the happening of an event or the doing of any act or thing shall exclude the day on
which the event happens or the act or thing is done and, if the last day of that period is a
public holiday, include the next day. If accused failed to file within 14 days, he can apply to
the High Court under s.310 for an extension of time, giving reasons for his application. The
High Court has discretion under s.310 to permit accused’s appeal in order that substantial
justice may be done in that matter; this was affirmed in Veerasingam and Tan Teng Gak.
● Notice of appeal shall contain an address at which any notice or documents connected with
the appeal may be served upon the appellant or upon his advocate.
● Accused is also advised to ask for the notes of evidence in the notice of appeal; he is entitled
to do so and be supplied with the notes even if the notes may have already been given
during the course of the trial. Tan Tho Kim. In Azizan bin Salleh, the court held that the
appellant must state whether the appeal is to the extent or legality of sentence.
● The notice of appeal can be signed either by himself or by his advocate on his behalf, as was
held in Jayasankaran

e. Petition of Appeal

● Accused is advised to file the petition of appeal, addressed to High Court, in Form 51 of the
2nd Schedule of CPC, with the clerk of Magistrates Court within 14 days after the date on
which he obtains a copy of the grounds of decision:s.307(4). If the accused applied for a
copy of the notes of evidence, then he must file the petition of appeal within 14 days after
obtaining the grounds of decision, or 14 days after the date which the notice is given to him
that the notes of evidence is available, whichever period is longer s.307(5). The computation
of 14 days is also according to Kentucky Fried Chicken v Lembaga Bandaraya Petaling
Jaya where the day of the event from which the period is counted is excluded. If the accused
failed to filed within 14 days, he can apply to the court for an extension of time in order that
substantial justice may be done in that matter as provided by s.310.
● the contents of the petition of appeal are provided in s.307(6). The appellant must state
shortly the substance of the judgment appealed against, and must also state definite
particulars of the grounds of appeal on points of law or fact or both. It should be noted that in
the case of Jawan anak Empaling, the court held that the petition of appeal may be filed via
fax to the registrar as s.307 does not specify that the original copy must be sent.
Furthermore, the time to file the petition of appeal starts to run when the appellant has
received the documents, not when they are posted to him.
f. Transmission of the appeal record and fixing the date of hearing of the appeal s.308

● When accused has complied with s.307, s.308 provides that the court appealed from shall
transmit to the High Court, PP and the advocate of appellant the appeal record, which
consists of a signed copy of the record of proceedings, grounds of decision, notice of appeal
and petition of appeal. If the judge accepts the appeal he shall then hand the appeal record
to the registrar to set down for trial and the registrar shall give notice of the hearing date of
the parties.

g. Hearing of the Appeal s.313

● Hearing of the appeal in the High Court is governed by s.313(1) when all parties are present,
the appellant will be heard first, making his submission to support his appeal, followed by the
respondent who will argue against the appeal, and finally the appellant will make a reply.
However, if the appellant is absent at the hearing, the court may still consider his appeal and
make such order as it thinks fit s.313(2).
● If the respondent is absent at the hearing and the court is not satisfied that the notice of
appeal was duly served on him, the court shall then adjourn the hearing and shall order
through the registrar that the notice be served on him. However, if the court is satisfied that
the notice cannot be effected on the respondent, then it shall proceed to hear the appeal in
his absence as provided in s.314.

h. Time has lapsed to file for appeal (thereafter, apply for revision)

● Since the accused has not filed a notice of appeal with the clerk of Magistrate’s Court within
14 days from the date of judgment, sentence or order pursuant to s.307(1), he is advised to
apply to the court for an extension of time pursuant to s.310 on the ground that it is
necessary in order that substantial justice may be done in the matter.
● [JUSTIFY whether the sentence, order was made without prejudice to the accused. e.g.
sentence not passed according to law, unreasoned judgment etc]
● As such, there has been a miscarriage of justice; therefore, as an alternative remedy,
accused may apply to the High Court to exercise its power of revision under s.323 and ss.31,
35-37 CJA 1964. As was held in the case of Hari Ram Seghal, the purpose of revision is to
correct or prevent miscarriage of justice which may arise from an error of judgment and
procedure.
● S.325 provides that the court has the power provided in s.316 in making decisions on appeal.
In this case, the court may reverse the finding and sentence and order him to be retried as
provided in s.316(b).
● There is no fixed procedure as to how accused may apply to seek the High Court’s power of
revision. In Re A Juvenille, for example, the High Court invoked its power of revision when it
received a letter which was undated and unsigned. Furthermore, in Muhari b. Mohd. Jani,
the court held that the revisionary power of the High Court may be sought in many ways,
such as through letters by any person, request by subordinate courts or formal application.

i. Procedure to appeal to the Court of Appeal

i. file a notice of appeal with the registry of High court. This must be done within 14 days from
the date of the decision of the High Court. S.51(1) CJA 1964. Where leave of court of appeal is
required, the computation of the 14 days commences from the date immediately after leave has
been granted by the Court of Appeal s.50(2A) and the proviso to s.51(2) CJA 1964. If the
prosecution is the appellant, then the notice of appeal must be signed by the PP or any officer
with his written consent s.50(3) CJA 1964. The notice of appeal must state briefly the substance
of the judgment appealed against, the address for service and must be signed by the appellant
or his advocate.

ii. Once the notice of appeal has been filed, then pursuant to s.52 CJA 1964, the judge by
whom the decision was given must, if he has not already written his judgment, record in writing
the grounds of his decision. There is no time frame for the grounds of decision to be prepared
but it is expected to be completed within a reasonable length of time. Once a copy of the ground
is available, the Registrar will serve a notice to the appellant or his advocate at his address for
service specified in the notice of appeal.

iii. Within 10 days after service of notice by the Registrar, the appellant must then file 5 copies of
the petition of appeal with the “Registrar of the Court”, s.53(1) CJA 1964. However, s.53(1)
does not state which Court, in practice, the petition of appeal is filed with the registrar of the
Court of Appeal, who will then transmit a copy to the High Court.

iv. s.53(3) CJA 1964 provides that if the petition is not filed within the prescribed time period, the
appeal is deemed to have been withdrawn. To avoid this, an appellant may apply for an
extension of time to file the petition of appeal pursuant to s.56 CJA 1964, such extension may
be granted if good reasons are given.

v. When the appellant has complied with the procedures in the notice of appeal and petition of
appeal, the court appealed from (viz, the High Court) shall transmit the record of appeal to the
Court of Appeal. The record of appeal contains a signed copy of the record of the proceedings,
the grounds of decision, the notice of appeal and the petition of appeal. On receipt of the record
of appeal, the Court of Appeal may then summarily reject the appeal or may grant leave to
amend the grounds of appeal (s.58 CJA), or set the appeal down for hearing (s.59 CJA).
vi. the order of submission during the hearing of the appeal before the Court of Appeal is
governed by s.60 CJA and R.74 RCA 1994. Pursuant to s.60(1) CJA, the CoA may then
confirm, reverse or vary the decision of the High Court, or may order a retrial or may remit the
matter with the opinion of the Court of Appeal thereon to the trial court, or may make such other
order in the matter as to it may seem just. The proviso to s.60 provides, however that the CoA
may dismiss the appeal if it consider that no substantial miscarriage of justice has occurred,
even though it is of opinion that the point raised in the appeal might be decided in favour of the
appellant. s.62 CJA provides that the decision of the Court of Appeal shall be delivered in open
court at once or at some future day.

j. Appeal against reduction of bail (‘not final order’)

● Accused will not be able to appeal to the Court of Appeal.

● Although Article 121(1B) Federal Constitution establishes the CoA to hear and determine
appeals from the High Court, made in its original jurisdiction or in its appellate jurisdiction of
decisions in respect of criminal matters by the Magistrate and Session Courts.
● S.26 CJA 1964 provides that the High Court shall hear appeals from subordinate court.
● the procedures and rules on appeals to the HC are provided in Chapter XXX CPC, and being
a party to the criminal case, either the prosecution or defence have a right to appeal.
● However, the decision appealed against must be in the nature of a final order, judgment or
sentence that finally disposes of the rights of parties, given at the end of trial as held in Maleb
bin Su v PP reiterated in Ang Gin Lee v PP.
● s.3 CJA 1964 defines ‘decision’ as a judgment, order or sentence, but does not include any
ruling made in the course of a trial or hearing of any cause or matter which does not finally
dispose of the rights of the parties.
● The ruling of the magistrate is not a final judgment, it is merely a procedural ruling. A
procedural ruling as such is not an order to which an appeal can be brought against.

k. Accused dead before hearing of appeal

● s.320 provides that every appeal shall abate at the death of the appellant, except an appeal
in relation to fine. This is illustrated in the case of the Choo Cheng Liew (Representative of
the Estate of Sunny Yap Eu Leong, deceased) v PP.
● if a person is sentenced to a fine or even a combination of both fine and imprisonment and
the person dies after the fine has been paid, the court will allow his executors or
administrators to carry on with the appeal with regards to the fine. If the estate managed to
quashed the conviction, they can recover the fine and use it for the benefit of the Estate,
which they are bound to administer
l. Admissibility of Fresh evidence at appeal

● s.317 provides that a judge may take such additional evidence or direct magistrate to take
such evidence; accused or advocate shall be present when additional evidence is taken.
● Requirements for fresh evidence to be admitted is laid down in Mohd Jamal v PP, the
federal court quoted with approval the 4 conditions laid down by Lord Parker CJ in R v Park
for fresh evidence to be admitted at the hearing of an appeal:

i. The evidence must not have been available at the trial

ii. The evidence must be relevant to the issues
iii. The evidence must be credible
iv. Evidence must be such that there is a good chance of creating reasonable doubt in the
justification of the judgment, sentence or order pronounced at the lower court.

m. Orders Court can make in an Appeal

● There are various orders that the court can make on appeal. For example, s.316 provides
that the judge may dismiss the appeal if there is no sufficient ground for interfering. If it is an
appeal by PP from an order of acquittal, s.316(a) provides that the court can reverse the
order and direct that further inquiry be made, or order a retrial, or find the accused guilty and
pass sentence on him according to law. In Chee Chiew Heong v PP, it was held that a retrial
will not be allowed if it gives the prosecution a second chance.
● If it is an appeal by accused against conviction or sentence, s.316(b)(i) provides that the
court can reverse the finding of guilt and sentence and acquit or discharge the accused, or
order retrial. On the other hand, s.316(b)(ii) provides that the court may choose to alter the
finding while maintaining the sentence, or with or without altering the finding reduce or
enhance the sentence or alter the nature of sentence.

m. Stay of Execution Principle

● s.311 provides that appeal does not operate as an automatic stay of execution, the trial court
or the appellate court has discretion to stay execution and or grant of bail pending appeal. A
stay of execution is not granted by the court as of right, for a good reason. After all, litigants
would have expended significant time, costs and effort in pursuing their legal remedies.
Therefore, the court does not ordinarily deprive successful parties of the fruits of their
litigation, notwithstanding the fact that an appeal may have been filed.
● An application for stay of execution pending appeal may be filed before the court passing the
sentence or the court to which the appeal lies. After hearing submission from both parties the
court may allow a stay of execution pending appeal upon giving such security as may seem
to him to be reasonable. There will be a condition that a notice of appeal would be filed. In
 the event that no notice of appeal has been filed by the accused within the prescribed period
the stay of execution will lapse and said sentence would become enforceable. The court will
issue a warrant to have the accused put in prison to serve his sentence.
● The discretion of whether to grant a stay of execution or not is vested in the court. As a rule,
the court will only grant a stay of execution if the applicant passes the “special
circumstances” threshold. The seminal decision on this point is the Federal Court authority of
Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd. It is
incumbent upon the applicant to justify via affidavit evidence what special circumstances
exist to warrant a stay of execution of a valid court judgment.
● Various factors can constitute “special circumstances” and there is no finite list as such. A
paramount factor that the court considers is whether the appeal, if successful, would be
rendered nugatory if the stay of execution is not awarded. A successful appeal rendered
nugatory means that the outcome of the appeal is essentially not worth anything because the
victorious appellant cannot be restored to his or her original position prior to the appeal.

n. pleaded guilty and appeal

● s.305 CPC, a guilty plea limits the right of appeal, so that the accused may only appeal
against the extent or legality of sentence. Therefore, accused cannot appeal against
conviction unless accused, for example did not understand the nature and consequences of
his guilty plea at the time he made it at the trial.

o. Power of revision, power in making decisions on appeal, whipping (July 2015/ Q4(b))

● Powers of Judge on revision is provided in s.325 CPC, which provides that from the record of
the proceedings called for by himself or which otherwise comes to his knowledge, the judge
may, in his discretion exercise any of the powers under s.311 stay of execution, s.315 arrest
of respondent in appeal against acquittal of accused-respondent, s.316 powers in making
decisions on appeal, and s.317 order to take further (fresh) evidence.
● Reference must be made to S.316(b)(ii) which provides that in an appeal by the accused
against the conviction or sentence, the judge may alter the finding, maintain the sentence, or
with or without altering the finding reduce or enhance the sentence or alter the nature of the
sentence.
● Clearly, the judge has the right to enhance the sentence of the conviction.
● s.288 provides for the mode of whipping and that the maximum of strokes shall not exceed
24 strokes for adults in one trial. Whipping is automatically stayed where there is an appeal,
since there is no appeal being carried out by the accused or prosecution, the sentence of
whipping carried out was legal.
● However, the judge is not allowed to increase the strokes on appeal after execution of
whipping, as provided in Liaw Kwai Wah.
p. Revisionary power of the High Court

● Reference is to be made to s.31 CJA which gives power of revision to the HC for criminal
proceedings and matter in the subordinate courts. S.35 CJA provides that the HC has a
general supervisory and revisionary jurisdiction over all subordinate courts. The purpose of
revision is to correct or prevent a miscarriage of justice which may arise from error in
judgment and procedure and from neglect or indolence by those in authority as held in Hari
Ram Seghal. In Ramanathan Chettiar, the court held that the purpose of justice is served if
the HC calls for the record of the lower court which shows no offence or the accused is
subjected to a vexatious and groundless prosecution.

i. The court in exercising its revisionary power has power to call for record of inferior courts
by virtue of s.323(1) to satisfy as to the correctness, legality or propriety of any findings,
sentence or order recorded passed and as to the regularity of any proceedings of such inferior
court.
- in Mohd Dalhar bin Redzwan v Datuk Bandar, DBKL, held that although the HC has
no appellate jurisdiction to hear an appeal against conviction by guilty plea, it may exercise its
revisionary powers to set aside the conviction which is illegal.
ii. s.324 provides that on examining the record under s.323, the judge may direct the
magistrate to make further inquiry into (i) any complaint which has been dismissed under s.135
or the case of any accused person who has been discharged.
iii. s.325 provides that the judge in his discretion may exercise power under s.311 in
relation to stay of execution, s.315 to arrest respondent in appeal against acquittal of accused,
s.316 in relation to powers in making decisions on appeal and s.317 to order to take
further(fresh) evidence.
- the Judge cannot convert a finding of acquittal into one of conviction.

● In Mohd Dalhar bin Redwan v Datuk Bandar DBKL, the court held that if the decision of
the subordinate court can be appealed but is not appealed, then the revisionary powers of
the High Court should not be resorted to unless in very exceptional cases and for very good
reasons. If the DPP can show very good reasons, revision will be invoked and the High Court
may order a substitution if it is satisfied that there is a miscarriage of justice. Once an order is
made the judge will certify his decision or order to the Magistrate Court and also grounds for
such variation and also make such orders as are comfortable to the decision so certified.
● There is no fixed procedure as to how accused may apply to seek the High Court’s power of
revision. In Re A Juvenille, for example, the High Court invoked its power of revision when it
received a letter which was undated and unsigned. Furthermore, in Muhari b. Mohd. Jani,
the court held that the revisionary power of the High Court may be sought in many ways,
such as through letters by any person, request by subordinate courts or formal application.

q. Right of parties to be heard during a revision proceedings

● s.326 must be considered with s.325(2) and both provisions elaborate s.36 CJA 1964.
● s.36 CJA 1964 provides that no party has the right to be heard before the High Court when
exercising its power of revision provided that no final order shall be made to the prejudice of
any person unless the person has had an opportunity of being so heard.
● s.326- no party has a right to appear before the High Court unless he is permitted.
● s.325(2)- any order made must not prejudice the accused unless the accused has been
given the opportunity to be heard.
● Thus, in revision cases, it is safer for the High Court to allow both parties to be present
except in obvious cases. Roslan bin Yahya, applied s.326 when invoking its revisionary
powers and allowed the accused and the DPP to appear and address the court.
● However, in PP v Mohamed Tarmizi, on appeal by the PP, the Federal Court said that
Chapter XXXI of the CPC must be read together with s.36 CJA 1964. The court held that
‘any person’ in s.36 CJA 1964 would include the prosecution. Thus, the learned judge was
wrong for not allowing the prosecution to be heard. The case was ordered to be remitted to
the magistrate for trial as the conviction was illegal.

r. Powers of the Court of Appeal

● s.60(1) CJA1964- the CoA may:-

i. Confirm, reverse or vary the decision of the HC: or

ii. Order a retrial;
iii. With its opinion, remit the matter to the trial court; or
iv. make any other order it thinks just.

s. Writ of Habeas Corpus

● Since A is unhappy with the detention order, the issue is whether he has any right to appeal
to the HC on the Magistrate’s order or alternatively, seek revision at the HC.
● In order to determine whether A can make an appeal, reference must be made to s.307(1)
which provides that “any person who is dissatisfied with any judgment, sentence, or order
pronounced by any Magistrate’s court in a criminal case or matter’. Lord Wright in Amand v
Home Secretary & Anor, stated that it is “criminal” in nature if it results in a conviction and
punishment of imprisonment or fine. The test in Amand was adopted in Ang Gin Lee v PP
wherein the judge held that the order by the Magistrate for an accused person to undergo
treatment and rehabilitation for a period of 2 years does not amount to a pronouncement in a
“criminal case or matter” and hence it is not applicable.
● In addition, the Criminal jurisdiction and Courts Judicature Act 1964 also indicates that an
order under the legislative scheme of s.6 Drug Dependant (Treatment & Rehabilitation)
Act 1983 is not an order that is appealable to the HC. Therefore, A cannot appeal against the
order.
● In the alternative, A could seek for a revision. S.31 CJA 1964 confers power of revision to the
HC in respect of any criminal proceedings in any law for the time being in force. In Ang Gin
 Lee, it was held that the legislative scheme of s.6 DD(T&R) Act 1983 is not an order that falls
within the ambit of the HC’s revisionary power.
● Since A is unable to appeal or seek revision against the Magistrate’s order, reference must be
made to the case of Rajasegaran v Pusat Pemulihan Serenti Raub Pahang which states
that the HC may make additional orders if required to safeguard the interest of the detinue
and society. Such as by granting writ of habeas corpus. The making of this additional order is
derived from different provision of law and not in the exercise of the appeallate or revisionary
powers of the HC.
● s.365-371 & s.373-374

t. Supplementary Grounds of Judgment

In relation to the supplementary grounds of judgment, reference has to be made to s.278, which
provides that no court shall alter or review its judgment after having recorded the same. This
was affirmed in cases such as Habee Bur Rahman and Lorraine Phyllis Cohen in which the
courts held that once a judge had signed and delivered his grounds of judgment, he cannot add,
supplement or amplify them in anyway thereafter. If the judge had added, supplemented or
amplified the grounds nevertheless, then the only effect is the appellate court must consider the
original judgment as it stood and exclude any consideration of the parts added later.
Appeals and Revision

Appeals & RevisionAppeal to High Court – Chapter XXX

Types: (1) Appeal from SC to HC (Section 26 CJA); (2) Appeal from HC – exercising original
criminal jurisdiction to COA or Appeal from HC – exercising appellate & revisionary jurisdiction
to COA (For question of law); (3) COA to FC. Special Case: Appeal from MC toCOA – leave
from COA (S. 50 CJA).

General Rule: All action from lower court can appeal to HC.

PROHIBITIONS : Section 304, 305, 306 CPC

* Section 305 CPC: Prohibit convict to appeal against his own conviction if had pleaded guilty to
charge.
Presumption: Offender plea of guilty is an impeccable one, explained on content of charge &
consequences of plea. Can appeal on LEGALITY of sentence (e.g S.289/punishment
not provided/appropriation of sentence) or CONVICTION (only if he does not understand
the nature and consequences of his guilty plea).

Municipal Commisioner v Chuah Seng: Pleaded guilty to offence of rearing pigs in premise
but the offence was rearing pigs in premise which are near a street. Offender pleaded guilty to a
non-offence = appeal against conviction granted.
Lee Yu Fah: appeal allowed although conviction based on plea of guilty because
ACCEPTANCE of the plea was questionable. Judge needs to be satisfied that other provisions
leading to acceptance of the plea of guilty had been complied.
Azizan Bin Salleh: Pleaded guilty & fined – but DPP appealed – Magistrate rejected NOA asit
was not properly filed: Not specify appeal on sentence or legality of sentence = Not in line with
Section 305. Ajaib Singh J: NOA is adequate to bring an appeal under S.305 but inpractice,
need to specify for clarity.
Mohd Dalhar Redzwan: HC no appellate jurisdiction to hear appeal on conviction by plea of
guilty, may use revisionary power to set aside illegal conviction.

* Section 306: Allow appeal against acquittal by accused person only with sanction by PP

* Requirements for s.307

Section 307: Allows “any person” who is dissatisfied with any “judgement/sentence/order” by
any MC in a “criminal case or matter” may prefer an appeal to HC.

(i) “Any person”:

Rudguard: “Any person” includes PP. Section 378: DPP, Police Officer not below the rank of
inspector, advocate authorised by PP or DPP.

Public Finance Berhad: the ‘person’ must be a party to the criminal case.

(ii) “Judgement, sentence or order” :

Maleb bin Su & Ang Gin Lee: ‘Order’ must be final order as in a judgement or sentence. Test=
whether it finally disposes of the rights of the parties.

PP v Raymond Chia: Supreme Courtheld Order under Section 51 CPC was a final order and
was appealable under Section 307.

(iii) “A criminal case or matter”:

Armand v Home Secretary: a case or matter is criminal if it results in conviction and

punishment.

Appeals and Revision

a. No Ground judgment

- The appellate court rarely interfere with the conclusion arrived by the trial court as stated in the
case of PP v Lim Kuan Hock. In the case of Ahmad Shah v PP, the court held that it is not the
practice of a court sitting on appeal to refuse to accept findings which depend on an
assessment of the credibility of a witness. The appellate court would only interfere with the
finding of fact where the finding of fact is unsupported by evidence. This has clearly been
reflected in the case of PP v Dato’ Yap Peng, where a finding of fact would be subjected to
intervention where there is a serious error or where the verdict being one where no reasonable
tribunal could have arrived at.

- The ground of decision must convey a reasoned judgment based on fact and law and not
merely a conclusion arrived at, as stated in the case of Balasingham v PP. There is a duty,
following the Court of Appeal decision of Hong Leong Equipment on the part of the judge to
furnish the reason for his decision.
- in the case of PP v Abang Abdul Rahman, it was held that the Magistrate should
discuss and evaluate the probability of the case. The reason of finding should be stated and
grounds indicating that he has applied his mind to the evidence provided in the case. The
absence of reasons would indicate that such vital consideration has the weight of the evidence
and the probabilities of the case may not have influenced the mental process of the trial judge in
arriving at the final finding as reflected in the case of Balasingham v PP.
- in the case of PP v Ma’arif, it was stated that there is a distinction between the finding of
a specific fact and a finding of fact which is an inference drawn from facts that are specifically
found. In the case of a finding of fact, the appellate court will be more ready to form an
independent opinion than in a case of finding of a specific fact which involves the evaluation of
the evidence of witnesses, particularly where the finding could be founded on their credibility or
bearing.
- In the case of PP v Vijaya Raj, it was held that it is the duty of the court on appeal to
review all evidence presented before the lower courts and if there are certain material of facts
that has been missed or improperly considered then the judge should not hesitate from
performing his duty as a judge of facts and to further consider and weigh these facts and to
decide whether these facts could have altered their judgment in one way or another.
- In relation to the mode of delivery of judgment, reference must be made to s.273 CPC
which clearly stipulates that until and unless a judgment complies with this requirement, it will
not amount to a judgment. Scanty grounds of judgment in the sense that there was only sketchy
references to the evidence with no specific finding of fact and no reasoned judgment is not in
compliance with s.273 CPC can actually amount to a good ground of appeal.
- Discuss procedure to file for an appeal.

b. Transmission of the appeal record and fixing the date of hearing of the appeal s.308

- When accused has complied with s.307, s.308 provides that the court appealed from shall
transmit to the High Court, PP and the advocate of appellant the appeal record, which
consists of a signed copy of the record of proceedings, grounds of decision, notice of appeal
and petition of appeal. If the judge accepts the appeal he shall then hand the appeal record
to the registrar to set down for trial and the registrar shall give notice of the hearing date of
the parties.

c. Hearing of an appeal

- s.313 lays down the procedure at hearing and s.314 lays on the effect of non-appearance of
the respondent. The following three situations may arise i.e. (i) all parties are present; (ii) the
appellant is absent; (iii) or the respondent is absent.

i. Where all parties are present at hearing, s.313(1) provides that the order of submission
will be the appellant shall be first heard in support of the appeal, the respondent shall be heard
against it, and the appellant shall be entitled to reply. The judge may then either at once give his
judgment in open court or reserve his judgment for another date s.318.
ii. Where the appellant is absent, s.313(2) provides that the Court may either consider the
appellant’s appeal and make such order it thinks fit or refuse to consider the appellant’s appeal.
iii. Where the respondent is absent, the court would invoke their powers under s.314 CPC,
if the court is not satisfied that the notice of appeal was duly served on the respondent, the court
shall adjourn the hearing and shall order that the notice be served on him by the registrar.
- s.314(2) provides that if the court is satisfied that the notice cannot be effected on him,
then it shall proceed to hear the appeal in his absence.
- However, s.314(2) appears to be harsh where the accused-respondent has been
acquitted and fails to appear in the hearing of appeal against the acquittal by the prosecution.
Reference has to be made to the case of PP v Goh Thor Kian which held that if a respondent
does not turn up, s.314 CPC should not be applied to a person who has been acquitted, as it
would be violating the principle of audi alteram partam, namely a right to be heard. In other
words, there would be a breach of natural justice in such situation.
- further, looking at the legislative history, s.314 CPC was enacted where the prosecution
was a respondent and its not a situation where the respondent is an acquitted person. The court
further held that it should not act in vain and there is no point in proceeding in a hearing
involving an acquitted person.
d. Filing of Notice of Appeal

● S.306 CPC provides that if it is an appeal against acquittal of the accused person, the written
sanction of the PP must be obtained.
● Accused is advised to file the notice of appeal with the clerk of Magistrate’s Court within 14
days from the date of judgment, sentence or order, as provided in s.307(1). The computation
of 14-days period is according to Kentucky Fried Chicken v Lembaga Bandaraya Petaling
Jaya, where the court held that under s.54 Interpretation Act 1948 and 1967, a period of
days from the happening of an event or the doing of any act or thing shall exclude the day on
which the event happens or the act or thing is done and, if the last day of that period is a
public holiday, include the next day. If accused failed to file within 14 days, he can apply to
the High Court under s.310 for an extension of time, giving reasons for his application. The
High Court has discretion under s.310 to permit accused’s appeal in order that substantial
justice may be done in that matter; this was affirmed in Veerasingam and Tan Teng Gak.
● Notice of appeal shall contain an address at which any notice or documents connected with
the appeal may be served upon the appellant or upon his advocate.
● Accused is also advised to ask for the notes of evidence in the notice of appeal; he is entitled
to do so and be supplied with the notes even if the notes may have already been given
during the course of the trial. Tan Tho Kim. In Azizan bin Salleh, the court held that the
appellant must state whether the appeal is to the extent or legality of sentence.
● The notice of appeal can be signed either by himself or by his advocate on his behalf, as was
held in Jayasankaran

e. Petition of Appeal

● Accused is advised to file the petition of appeal, addressed to High Court, in Form 51 of the
2nd Schedule of CPC, with the clerk of Magistrates Court within 14 days after the date on
which he obtains a copy of the grounds of decision:s.307(4). If the accused applied for a
copy of the notes of evidence, then he must file the petition of appeal within 14 days after
obtaining the grounds of decision, or 14 days after the date which the notice is given to him
that the notes of evidence is available, whichever period is longer s.307(5). The computation
of 14 days is also according to Kentucky Fried Chicken v Lembaga Bandaraya Petaling
Jaya where the day of the event from which the period is counted is excluded. If the accused
failed to filed within 14 days, he can apply to the court for an extension of time in order that
substantial justice may be done in that matter as provided by s.310.
● the contents of the petition of appeal are provided in s.307(6). The appellant must state
shortly the substance of the judgment appealed against, and must also state definite
particulars of the grounds of appeal on points of law or fact or both. It should be noted that in
the case of Jawan anak Empaling, the court held that the petition of appeal may be filed via
fax to the registrar as s.307 does not specify that the original copy must be sent.
Furthermore, the time to file the petition of appeal starts to run when the appellant has
received the documents, not when they are posted to him.
f. Transmission of the appeal record and fixing the date of hearing of the appeal s.308

● When accused has complied with s.307, s.308 provides that the court appealed from shall
transmit to the High Court, PP and the advocate of appellant the appeal record, which
consists of a signed copy of the record of proceedings, grounds of decision, notice of appeal
and petition of appeal. If the judge accepts the appeal he shall then hand the appeal record
to the registrar to set down for trial and the registrar shall give notice of the hearing date of
the parties.

g. Hearing of the Appeal s.313

● Hearing of the appeal in the High Court is governed by s.313(1) when all parties are present,
the appellant will be heard first, making his submission to support his appeal, followed by the
respondent who will argue against the appeal, and finally the appellant will make a reply.
However, if the appellant is absent at the hearing, the court may still consider his appeal and
make such order as it thinks fit s.313(2).
● If the respondent is absent at the hearing and the court is not satisfied that the notice of
appeal was duly served on him, the court shall then adjourn the hearing and shall order
through the registrar that the notice be served on him. However, if the court is satisfied that
the notice cannot be effected on the respondent, then it shall proceed to hear the appeal in
his absence as provided in s.314.

h. Time has lapsed to file for appeal (thereafter, apply for revision)

● Since the accused has not filed a notice of appeal with the clerk of Magistrate’s Court within
14 days from the date of judgment, sentence or order pursuant to s.307(1), he is advised to
apply to the court for an extension of time pursuant to s.310 on the ground that it is
necessary in order that substantial justice may be done in the matter.
● [JUSTIFY whether the sentence, order was made without prejudice to the accused. e.g.
sentence not passed according to law, unreasoned judgment etc]
● As such, there has been a miscarriage of justice; therefore, as an alternative remedy,
accused may apply to the High Court to exercise its power of revision under s.323 and ss.31,
35-37 CJA 1964. As was held in the case of Hari Ram Seghal, the purpose of revision is to
correct or prevent miscarriage of justice which may arise from an error of judgment and
procedure.
● S.325 provides that the court has the power provided in s.316 in making decisions on appeal.
In this case, the court may reverse the finding and sentence and order him to be retried as
provided in s.316(b).
● There is no fixed procedure as to how accused may apply to seek the High Court’s power of
revision. In Re A Juvenille, for example, the High Court invoked its power of revision when it
received a letter which was undated and unsigned. Furthermore, in Muhari b. Mohd. Jani,
the court held that the revisionary power of the High Court may be sought in many ways,
such as through letters by any person, request by subordinate courts or formal application.

i. Procedure to appeal to the Court of Appeal

i. file a notice of appeal with the registry of High court. This must be done within 14 days from
the date of the decision of the High Court. S.51(1) CJA 1964. Where leave of court of appeal is
required, the computation of the 14 days commences from the date immediately after leave has
been granted by the Court of Appeal s.50(2A) and the proviso to s.51(2) CJA 1964. If the
prosecution is the appellant, then the notice of appeal must be signed by the PP or any officer
with his written consent s.50(3) CJA 1964. The notice of appeal must state briefly the substance
of the judgment appealed against, the address for service and must be signed by the appellant
or his advocate.

ii. Once the notice of appeal has been filed, then pursuant to s.52 CJA 1964, the judge by
whom the decision was given must, if he has not already written his judgment, record in writing
the grounds of his decision. There is no time frame for the grounds of decision to be prepared
but it is expected to be completed within a reasonable length of time. Once a copy of the ground
is available, the Registrar will serve a notice to the appellant or his advocate at his address for
service specified in the notice of appeal.

iii. Within 10 days after service of notice by the Registrar, the appellant must then file 5 copies of
the petition of appeal with the “Registrar of the Court”, s.53(1) CJA 1964. However, s.53(1)
does not state which Court, in practice, the petition of appeal is filed with the registrar of the
Court of Appeal, who will then transmit a copy to the High Court.

iv. s.53(3) CJA 1964 provides that if the petition is not filed within the prescribed time period, the
appeal is deemed to have been withdrawn. To avoid this, an appellant may apply for an
extension of time to file the petition of appeal pursuant to s.56 CJA 1964, such extension may
be granted if good reasons are given.

v. When the appellant has complied with the procedures in the notice of appeal and petition of
appeal, the court appealed from (viz, the High Court) shall transmit the record of appeal to the
Court of Appeal. The record of appeal contains a signed copy of the record of the proceedings,
the grounds of decision, the notice of appeal and the petition of appeal. On receipt of the record
of appeal, the Court of Appeal may then summarily reject the appeal or may grant leave to
amend the grounds of appeal (s.58 CJA), or set the appeal down for hearing (s.59 CJA).
vi. the order of submission during the hearing of the appeal before the Court of Appeal is
governed by s.60 CJA and R.74 RCA 1994. Pursuant to s.60(1) CJA, the CoA may then
confirm, reverse or vary the decision of the High Court, or may order a retrial or may remit the
matter with the opinion of the Court of Appeal thereon to the trial court, or may make such other
order in the matter as to it may seem just. The proviso to s.60 provides, however that the CoA
may dismiss the appeal if it consider that no substantial miscarriage of justice has occurred,
even though it is of opinion that the point raised in the appeal might be decided in favour of the
appellant. s.62 CJA provides that the decision of the Court of Appeal shall be delivered in open
court at once or at some future day.

j. Appeal against reduction of bail (‘not final order’)

● Accused will not be able to appeal to the Court of Appeal.

● Although Article 121(1B) Federal Constitution establishes the CoA to hear and determine
appeals from the High Court, made in its original jurisdiction or in its appellate jurisdiction of
decisions in respect of criminal matters by the Magistrate and Session Courts.
● S.26 CJA 1964 provides that the High Court shall hear appeals from subordinate court.
● the procedures and rules on appeals to the HC are provided in Chapter XXX CPC, and being
a party to the criminal case, either the prosecution or defence have a right to appeal.
● However, the decision appealed against must be in the nature of a final order, judgment or
sentence that finally disposes of the rights of parties, given at the end of trial as held in Maleb
bin Su v PP reiterated in Ang Gin Lee v PP.
● s.3 CJA 1964 defines ‘decision’ as a judgment, order or sentence, but does not include any
ruling made in the course of a trial or hearing of any cause or matter which does not finally
dispose of the rights of the parties.
● The ruling of the magistrate is not a final judgment, it is merely a procedural ruling. A
procedural ruling as such is not an order to which an appeal can be brought against.

k. Accused dead before hearing of appeal

● s.320 provides that every appeal shall abate at the death of the appellant, except an appeal
in relation to fine. This is illustrated in the case of the Choo Cheng Liew (Representative of
the Estate of Sunny Yap Eu Leong, deceased) v PP.
● if a person is sentenced to a fine or even a combination of both fine and imprisonment and
the person dies after the fine has been paid, the court will allow his executors or
administrators to carry on with the appeal with regards to the fine. If the estate managed to
quashed the conviction, they can recover the fine and use it for the benefit of the Estate,
which they are bound to administer
l. Admissibility of Fresh evidence at appeal

● s.317 provides that a judge may take such additional evidence or direct magistrate to take
such evidence; accused or advocate shall be present when additional evidence is taken.
● Requirements for fresh evidence to be admitted is laid down in Mohd Jamal v PP, the
federal court quoted with approval the 4 conditions laid down by Lord Parker CJ in R v Park
for fresh evidence to be admitted at the hearing of an appeal:

i. The evidence must not have been available at the trial

ii. The evidence must be relevant to the issues
iii. The evidence must be credible
iv. Evidence must be such that there is a good chance of creating reasonable doubt in the
justification of the judgment, sentence or order pronounced at the lower court.

m. Orders Court can make in an Appeal

● There are various orders that the court can make on appeal. For example, s.316 provides
that the judge may dismiss the appeal if there is no sufficient ground for interfering. If it is an
appeal by PP from an order of acquittal, s.316(a) provides that the court can reverse the
order and direct that further inquiry be made, or order a retrial, or find the accused guilty and
pass sentence on him according to law. In Chee Chiew Heong v PP, it was held that a retrial
will not be allowed if it gives the prosecution a second chance.
● If it is an appeal by accused against conviction or sentence, s.316(b)(i) provides that the
court can reverse the finding of guilt and sentence and acquit or discharge the accused, or
order retrial. On the other hand, s.316(b)(ii) provides that the court may choose to alter the
finding while maintaining the sentence, or with or without altering the finding reduce or
enhance the sentence or alter the nature of sentence.

m. Stay of Execution Principle

● s.311 provides that appeal does not operate as an automatic stay of execution, the trial court
or the appellate court has discretion to stay execution and or grant of bail pending appeal. A
stay of execution is not granted by the court as of right, for a good reason. After all, litigants
would have expended significant time, costs and effort in pursuing their legal remedies.
Therefore, the court does not ordinarily deprive successful parties of the fruits of their
litigation, notwithstanding the fact that an appeal may have been filed.
● An application for stay of execution pending appeal may be filed before the court passing the
sentence or the court to which the appeal lies. After hearing submission from both parties the
court may allow a stay of execution pending appeal upon giving such security as may seem
to him to be reasonable. There will be a condition that a notice of appeal would be filed. In
 the event that no notice of appeal has been filed by the accused within the prescribed period
the stay of execution will lapse and said sentence would become enforceable. The court will
issue a warrant to have the accused put in prison to serve his sentence.
● The discretion of whether to grant a stay of execution or not is vested in the court. As a rule,
the court will only grant a stay of execution if the applicant passes the “special
circumstances” threshold. The seminal decision on this point is the Federal Court authority of
Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd. It is
incumbent upon the applicant to justify via affidavit evidence what special circumstances
exist to warrant a stay of execution of a valid court judgment.
● Various factors can constitute “special circumstances” and there is no finite list as such. A
paramount factor that the court considers is whether the appeal, if successful, would be
rendered nugatory if the stay of execution is not awarded. A successful appeal rendered
nugatory means that the outcome of the appeal is essentially not worth anything because the
victorious appellant cannot be restored to his or her original position prior to the appeal.

n. pleaded guilty and appeal

● s.305 CPC, a guilty plea limits the right of appeal, so that the accused may only appeal
against the extent or legality of sentence. Therefore, accused cannot appeal against
conviction unless accused, for example did not understand the nature and consequences of
his guilty plea at the time he made it at the trial.

o. Power of revision, power in making decisions on appeal, whipping (July 2015/ Q4(b))

● Powers of Judge on revision is provided in s.325 CPC, which provides that from the record of
the proceedings called for by himself or which otherwise comes to his knowledge, the judge
may, in his discretion exercise any of the powers under s.311 stay of execution, s.315 arrest
of respondent in appeal against acquittal of accused-respondent, s.316 powers in making
decisions on appeal, and s.317 order to take further (fresh) evidence.
● Reference must be made to S.316(b)(ii) which provides that in an appeal by the accused
against the conviction or sentence, the judge may alter the finding, maintain the sentence, or
with or without altering the finding reduce or enhance the sentence or alter the nature of the
sentence.
● Clearly, the judge has the right to enhance the sentence of the conviction.
● s.288 provides for the mode of whipping and that the maximum of strokes shall not exceed
24 strokes for adults in one trial. Whipping is automatically stayed where there is an appeal,
since there is no appeal being carried out by the accused or prosecution, the sentence of
whipping carried out was legal.
● However, the judge is not allowed to increase the strokes on appeal after execution of
whipping, as provided in Liaw Kwai Wah.
p. Revisionary power of the High Court

● Reference is to be made to s.31 CJA which gives power of revision to the HC for criminal
proceedings and matter in the subordinate courts. S.35 CJA provides that the HC has a
general supervisory and revisionary jurisdiction over all subordinate courts. The purpose of
revision is to correct or prevent a miscarriage of justice which may arise from error in
judgment and procedure and from neglect or indolence by those in authority as held in Hari
Ram Seghal. In Ramanathan Chettiar, the court held that the purpose of justice is served if
the HC calls for the record of the lower court which shows no offence or the accused is
subjected to a vexatious and groundless prosecution.

i. The court in exercising its revisionary power has power to call for record of inferior courts
by virtue of s.323(1) to satisfy as to the correctness, legality or propriety of any findings,
sentence or order recorded passed and as to the regularity of any proceedings of such inferior
court.
- in Mohd Dalhar bin Redzwan v Datuk Bandar, DBKL, held that although the HC has
no appellate jurisdiction to hear an appeal against conviction by guilty plea, it may exercise its
revisionary powers to set aside the conviction which is illegal.
ii. s.324 provides that on examining the record under s.323, the judge may direct the
magistrate to make further inquiry into (i) any complaint which has been dismissed under s.135
or the case of any accused person who has been discharged.
iii. s.325 provides that the judge in his discretion may exercise power under s.311 in
relation to stay of execution, s.315 to arrest respondent in appeal against acquittal of accused,
s.316 in relation to powers in making decisions on appeal and s.317 to order to take
further(fresh) evidence.
- the Judge cannot convert a finding of acquittal into one of conviction.

● In Mohd Dalhar bin Redwan v Datuk Bandar DBKL, the court held that if the decision of
the subordinate court can be appealed but is not appealed, then the revisionary powers of
the High Court should not be resorted to unless in very exceptional cases and for very good
reasons. If the DPP can show very good reasons, revision will be invoked and the High Court
may order a substitution if it is satisfied that there is a miscarriage of justice.
● There is no fixed procedure as to how accused may apply to seek the High Court’s power of
revision. In Re A Juvenille, for example, the High Court invoked its power of revision when it
received a letter which was undated and unsigned. Furthermore, in Muhari b. Mohd. Jani,
the court held that the revisionary power of the High Court may be sought in many ways,
such as through letters by any person, request by subordinate courts or formal application.

q. Right of parties to be heard during a revision proceedings

● s.326 must be considered with s.325(2) and both provisions elaborate s.36 CJA 1964.
● s.36 CJA 1964 provides that no party has the right to be heard before the High Court when
exercising its power of revision provided that no final order shall be made to the prejudice of
any person unless the person has had an opportunity of being so heard.
● s.326- no party has a right to appear before the High Court unless he is permitted.
● s.325(2)- any order made must not prejudice the accused unless the accused has been
given the opportunity to be heard.
● Thus, in revision cases, it is safer for the High Court to allow both parties to be present
except in obvious cases. Roslan bin Yahya, applied s.326 when invoking its revisionary
powers and allowed the accused and the DPP to appear and address the court.
● However, in PP v Mohamed Tarmizi, on appeal by the PP, the Federal Court said that
Chapter XXXI of the CPC must be read together with s.36 CJA 1964. The court held that
‘any person’ in s.36 CJA 1964 would include the prosecution. Thus, the learned judge was
wrong for not allowing the prosecution to be heard. The case was ordered to be remitted to
the magistrate for trial as the conviction was illegal.

r. Powers of the Court of Appeal

● s.60(1) CJA1964- the CoA may:-

i. Confirm, reverse or vary the decision of the HC: or

ii. Order a retrial;
iii. With its opinion, remit the matter to the trial court; or
iv. make any other order it thinks just.

s. Writ of Habeas Corpus

● Since A is unhappy with the detention order, the issue is whether he has any right to appeal
to the HC on the Magistrate’s order or alternatively, seek revision at the HC.
● In order to determine whether A can make an appeal, reference must be made to s.307(1)
which provides that “any person who is dissatisfied with any judgment, sentence, or order
pronounced by any Magistrate’s court in a criminal case or matter’. Lord Wright in Amand v
Home Secretary & Anor, stated that it is “criminal” in nature if it results in a conviction and
punishment of imprisonment or fine. The test in Amand was adopted in Ang Gin Lee v PP
wherein the judge held that the order by the Magistrate for an accused person to undergo
treatment and rehabilitation for a period of 2 years does not amount to a pronouncement in a
“criminal case or matter” and hence it is not applicable.
● In addition, the Criminal jurisdiction and Courts Judicature Act 1964 also indicates that an
order under the legislative scheme of s.6 Drug Dependant (Treatment & Rehabilitation)
Act 1983 is not an order that is appealable to the HC. Therefore, A cannot appeal against the
order.
● In the alternative, A could seek for a revision. S.31 CJA 1964 confers power of revision to the
HC in respect of any criminal proceedings in any law for the time being in force. In Ang Gin
Lee, it was held that the legislative scheme of s.6 DD(T&R) Act 1983 is not an order that falls
within the ambit of the HC’s revisionary power.
● Since A is unable to appeal or seek revision against the Magistrate’s order, reference must be
made to the case of Rajasegaran v Pusat Pemulihan Serenti Raub Pahang which states
that the HC may make additional orders if required to safeguard the interest of the detinue
and society. Such as by granting writ of habeas corpus. The making of this additional order is
derived from different provision of law and not in the exercise of the appeallate or revisionary
powers of the HC.
● s.365-371 & s.373-374

t. Supplementary Grounds of Judgment

In relation to the supplementary grounds of judgment, reference has to be made to s.278, which
provides that no court shall alter or review its judgment after having recorded the same. This
was affirmed in cases such as Habee Bur Rahman and Lorraine Phyllis Cohen in which the
courts held that once a judge had signed and delivered his grounds of judgment, he cannot add,
supplement or amplify them in anyway thereafter. If the judge had added, supplemented or
amplified the grounds nevertheless, then the only effect is the appellate court must consider the
original judgment as it stood and exclude any consideration of the parts added later.