April 2021

Part A: Compulsory Question

1. a) In respect of criminal appeal that emanates from the Magistrates’ Court, PP wishing to appeal to
Court of Appeal from a decision of the High Court must confine his appeal only to question of law.

Advise the PP on whether that is the correct statement of law (7m)

 S50(2) CJA – if appeal is from Magistrate Court, then it can only be appealed to CA for only
question of law
 Tay Swee Teck v PP – appellant has mixture of question of law and fact and Court held that
mixture is obviously not in accordance with s50(2) CJA. Only question of law is allowed.
 PP v Mahathir Muhammad (2013) – s50(2) requires both PP and accused to confine to question
of law only, does not allow mixture of law and facts. s50(3) exempts PP from leave requirement
but doesn’t exempt the PP from question of law requirement.
 Since you are advising the PP, you need to say PP is confined to this law.
 S50(3): leave to appeal is not required by Prosecution. But if accused person is appealing, then
leave to appeal is required.
 Muhathir (2013) doesn’t follow Pasu case (2001): PP can ask question of law and facts in
combination

(b) The SC Judge found Ramos guilty under subsection 4(1) of the Anti-Money Laundering, Anti-
Terrorism Financing and Proceeds of Unlawful Activities Act 2001 at the Kuala Lumpur Sessions Court.
She imposed a sentence of 6 years imprisonment and a fine of RM800,000. Upon the conviction of the
accused on the charge, his lawyer informed the Court that the convicted person would be appealing
against the conviction and sentence. The lawyer applied for stay of execution of sentence of
imprisonment and fine. The DPP objected to the stay application.

 Datuk Seri Anwar Ibrahim; KWK (A Child) v PP – imprisonment

 S311 CPC – when appeal is become mounted, parties have to apply and court have to make an
order whether sentence and fine is stayed. But the court’s power is discretionary
 Factors to guide stay of execution for fine is different from that for imprisonment
 PP v Datuk Seri Mohd Najib bin Hj Abd Razak decision [2020] 11 MLJ
o Paragraph 2942, 2947 – stay of execution
o Court has power to do so under s311 CPC and s57 CJA 1964.
o Stay of execution of sentence of imprisonment is addressed first –
 KWK (A Child) v PP, Re Kwan Wah Yip
 Dato Seri Anwar Ibrahim v PP
o Stay of execution of sentence of fine
 Principles in cases such KWK (A Child) and Dato Seri Anwar governing the
imprisonment, not to the sentence of fine
 Mohd Noor bin Yunus v PP - court has discretion to grant sentence of fine or not
 In this decision, fine was not discretionary, but mandatory
  Court sentenced both imprisonment and fine (with minimum amount of the law
states – RM210m (court held the minimum fine for his guilt) which is the exact
amount of fine imposed by this court on the accused.)
 If accused is unable to pay this amount, he will be sentenced to 6 years
imprisonment on top of 12 years.
 Court makes an exception of general rule of not granting the stay and grant a
stay.
o In this case, the court granted a stay pending appeal.
o And went on to say we cannot try to punish Najib by refusing a stay of execution
pending appeal because he is a premier of the country.
o Every person is entitled to the protection of law including Najib.
 Stay of execution and bail pending appeal comes hand in hand
 Based on the fact, stay of execution for both sentence of imprisonment and fine are different.
 S311 – stay of execution pending appeal
o Except for sentence of whipping, no appeal shall operate as a stay of execution.
 Here, the court has discretion to grant stay for both.
 KWK v PP and Dato Seri Anwar Ibrahim are quoted in Datuk Seri Mohd Najib
 Whether the court should stay the fine sentence? Usually court doesn’t stay fine because fine
can be refunded.
 However, in Najib decision, the court took time to discuss determining the court’s discretion on
stay of fine.
 Because failure of accused person to pay the imposed fine will result the accused going to jail in
default.
 Whether the imposition of this fine is beyond the ability of accused person to pay
 If accused unable to pay, he will be brought back to court to see whether he can pay by
alternative way – court will not straight away send him to jail.
 In Najib case, there is no discretion to grant the fine or not, the grant of fine is mandatory
under MACC Act.
 If court has discretion to impose, court will take into account whether how many Najib can
afford.
 If Najib unable to pay the fine, he will end up in jail.
 The sum is too large that the Court knows he couldn’t pay, the court should not impose a fine if
it knows accused is not in financial position to pay.
 Hence, if Court doesn’t grant a stay, he will go to jail.
 Hence, the court says this is extenuating and special circumstances justifying a stay of
execution of sentence of fine. Hence the court grants a stay.

c) Yonex is charged under s323 of PC (what offence). I However, on the trial date (when is the
application be made, it means trial has started and, if the case is pending – leave of court is required),
the complainant appeared (who apply for) in Court and told the Court that he is not interested to
proceed and wants the case compounded against Yonex.

Discuss the procedure that needs to be followed by the Magistrate in compounding Yonex. (5m)
Compounding of cases only apply to certain cases –

 Accused can come to an agreement – settlement out of court

 s260 – stipulates only certain cases can be compounded
o What offence it is – s323: voluntarily causing hurt
o If offence under Part A – subsection (1)
o If offence under Part B – subsection (2)
o Not under both, cases cannot be compounded
 Here, s323 is under Part A – on the trial date - require leave of court – s323(1) applies

S260(1)(b) if it is pending, it cannot be compounded. Leave of court must be required

Kee Leong Bee v PP

Case Norizan bin Binta Ali:

1. Nature of alleged offence – apply to the fact is causing hurt

2. Relationship of the party

3. Stage at which compensation is sought

d) Mopiko was found guilty at the Magistrate’s Court and was sentenced to 1 month imprisonment and
a fine of RM 3,000 for the offence of theft of a watch. He appealed against the conviction and sentence
to High Court and whilst pending the hearing of his appeal, he died.

Advice Mopiko’s wife on whether she could proceed with the appeal at the High Court. (5m)

 S320 – abatement of appeal

o Every appeal under s306 shall finally abate on the death of accused, and every other
appeal (appeal by accused against sentence, conviction) (except an appeal against a
sentence of fine) under this Chapter shall finally abate on the death of the appellant.
o S306 – appeal by PP against acquittal
o Composite sentence which is a mixture of imprisonment and fine, does that abate on
that?
o Choo Cheng Liew (Representative of the Estate Sunny Yap Eu Leong) v PP – it doesn’t
abate. (tidak habis, you can appeal even it is a composite sentence)
o Recent appeal case – Karpal Singh – he was charged for sedition and fine to RM 4,000.
He paid the fine and appeal and pass away. The court reduced the amount of fine (aldy
paid) and the balance was refunded to the wife.

Lecture Rewind

police investigation - oct 6

transfer of cases - oct 13

Part B: Answer any 3 questions

2. a) Bob was arrested following information given orally about the stabbing to death of a man. Bob was
subsequently charged under s302 of PC. In relation to the information, discuss the following:

(i) Whether the failure to reduce the information into writing is fatal to the prosecution’s case.

S107 CPC – First Information Report

 Every information of offence, if given orally, shall be reduced to writing.

 As long as it is relevant, it is admissible.
 Foong Chee Chong says not mandatory to reduce into writing BUT can create doubts that is fatal
to case. (there are substantive evidence in this case, and the maker comes to court and justify,
then s107 is just for corroboration, and impeach – here corroboration and impeachment is no
need in this case)
 Tan Cheng Kooi
 PP v Abdul Razak bin Johari
 Balachandran
 Lee Yoke Nam v Chin Keat Sing
 All of these cases are conflict of fact, not law. Even if it is given orally, it is still applied if it
doesn’t conflict with the law of hearsay, or maker has died.
 Its evidentiary value is still admissible.
 If the maker is there, then it is not tendered for truth, it is not hearsay.
 It is tendered for corroboration, or used to impeach him under s155, or to refresh his memories.
 It is only tendered for the truth of matter stated if maker is not available. Then s215 will apply.
 Those cases that held fatal to the case, s107 is the only type of evidence they have. Hence,
failure to reduce it created doubt on its accuracy of its content.

(ii) Assuming the information was reduced into writing, is Bob entitled to a copy of the report?

b) On 21 June 2020, a police report was lodged at Pulau Tikus Police Station. The report was lodged by
one Sukah Singh who alleged that at about 10.00 a.m. on 21 June 2020 he was at the botanical Gardens
waiting for a friend. A man, whom he knew as “Hamid” and who was then riding a bicycle, purposely
knocked into him from the front, causing him to fall backwards. His right hand was slightly strained as he
tried to break his fall with it. According to Sukah Singh, he shouted for help when Hamid directed him to
empty his pockets, Hamid quickly fled from the scene. Sergeant Syed, the officer in charge of the police
station, acted on the police report and proceeded to investigate further offence of voluntarily causing
hurt. Hamid was subsequently arrested.

Explain the procedure for investigation of the offence and arrest of Hamid. (15 marks)

 Police investigated for offence of voluntarily causing hurt

 1st Schedule of CPC – s323: voluntarily causing hurt – shall not arrest without warrant (non-
seizable offence– you cannot ordinarily arrest without warrant)

  For non-seizable offence,
 S108(2) CPC: Police who wishes to investigate need to obtain an order to investigate from PP.
 s108(1) CPC: If police have not received an order, he can refer him to Magistrate under and
 s128(1) CPC: Magistrate can take cognizance of the offence and initiate the proceeding in
Magistrate Court.
 Discuss the power to investigate:
o S108(2): no police shall in non-seizable case exercise any powers without order of PP
o S108(3): any police not below rank of Sergeant may exercise without order
 Police can arrest Hamid for the purpose of getting the name and address under s24. Once
ascertain it, then you release him.
 Actually Hamid cannot be arrested without a warrant – arrest unlawful.
 Hamid shall comply with the summon and go to court

3. Answer ALL parts of this question which are separate and independent

(a) The accused was brought before the Sessions Court at Melaka for a charge of rape. He was kept
handcuffed when the charge was read and explained to him to which he then refused to plead.

Based on the above facts:

(i) Discuss whether the accused should be kept handcuffed. (5 marks)

 Summary trial procedure s173(a) – Charge should be read and explained

 Ramanathan v PP – outrage of modesty. Charges are read to him and counsel is applied to court
for handcuff removed. DPP opposed it and court rejected the handcuff removed and order the
handcuff to be capped on.
o The discretion for the handcuff to be removed or capped is solely on the discretion on
the trial judge.
o There must be credible evidence by the DPP to keep the handcuff.
 Yaakub bin Ahmad – the accused is presumed innocent until proven guilty. It is inappropriate to
handcuff accused. But if he intends to escape etc, then he can be handcuffed but need to take
leave of court.

(ii) Explain the trial procedure to be followed by the Court. (12 marks)

 Pre-trial procedures commence:

 Pre-trial conference s172A
 Case management s172B
 Accused is asked to plead under s173(a)
 Accused refused to plead under s173(c)

Heng You Nang case

(b) Pursuant to the lodgment of a written complaint by Mickey for the issue of a private summons
against Donald for as offence under section 498 of the Penal Code, a summons signed by Mickey before
a Magistrate was issued against Donald. At the conclusion of the trial against Donald before the
Magistrate in respect of the charge under the said section, Donald was found guilty and sentenced to
one-month imprisonment. Donald appealed against the conviction and sentence. At the hearing of the
appeal learned counsel for Donald raised various issues, one of which was that the procedure laid down
in the Criminal Procedure Code regulating the issue of private summons had not been followed when
the summons was issued in this case. He said that there was no evidence on record to show that the
complainant appeared before a Magistrate for the purpose of being examined orally on oath as required
under the Criminal Procedure Code. He submitted that this omission was fatal.

With reference to relevant statutory provisions and decided cases examine the issue raised and the
submission made by the learned counsel. (8 marks)

 Initiation of Proceeding = Private Summons

 if non-seizable case and police has no order to investigate from PP, complainant is referred to
the Magistrate. (s380)
 Once Mag takes cognizance, then refer to s133.
 S133 CPC –

(a) Magistrate sets a date to examine the complainant

(d) Magistrate shall examine the complainant under oath and the substance of the
examination of the complainant must be reduced to writing and signed by the
complainant and the magistrate.
 Whether or not there must be evidence to show that this procedure is complied with?
o There is no proof the substance of examination has to be reduced to writing and signed
by the complainant and magistrate.
o Therefore, it is suggested that the procedure laid down in s133(d) CPC was not
followed.
o Re Rasiah Munusamy – it is mandatory for the examination to be recorded, reduced
into writing and signed by complainant and magistrate.

4. Answer ALL parts of this question which are separate and independent

(a) Inspector Salleh was with a team of policemen from the Narcotics Crime Investigation Division to
conduct a raid at a house in Bukit Beruang, Melaka. On arrival at the house, Inspector Salleh found the
front door closed and locked, He knocked at the door several times while identifying himself as the
police. The door was finally opened and it was Cat Woman at the door. Inspector Salleh identified
himself again as the police to Cat Woman.

Explain how would Inspector Salleh conduct a search on Cat Woman? (5 marks)

S17, S19(2) S20A, Fourth Schedule CPC

 She is not under arrest – GR: only person is arrested can be searched
 S17: where search is conducted in premise, and the thing is capable of being concealed by Cat
Woman. It must search in the presence of inspector (not below than inspector)
 S19(2): since she is a woman, she must be searched by a police woman.
 Pat down search and done according to 4th Schedule
(b) Explain the power of the police to seize property suspected of being stolen. (12 marks)

 S62: Search without warrant – for police to search and seize for goods being stolen with warrant
 S62A & B – counterfeit or counterfeit currency
 S63: Summary search – the police is allowed to search and seize stolen property, but not require
warrant, they require authorized in writing by the Chief Police Officer
 S435: power of police to seize property suspected of being stolen – police don’t require and
warrant or authorization by CPO, it is a broad power to the police. Police has power under case
of Chick Fashion and Ghani v Jones
 S56: Magistrate may issue warrant authorizing search for evidence of offence – anything related
to crime
 S64: what they need to do after police seized – police need to provide the list of items being
seized and signed by – PP v Chung Wan Li
 S413 but keep it brief.

(c) “In general, the law of search in Malaysia is inadequate and there is a heavy reliance on the common
law position. It is interesting to see that the lacuna is sought to be filled with the introduction of s 20A
and the inclusion of Fourth Schedule of [the Criminal Procedure Code).”

Discuss. (8 marks)

 The police and their powers of intimate search | The Star

 Preface the article above and state what the 4th Schedule is
 4th Schedule – s20A – types and conduct of body search
 4 types of body search – pat down, strip, intimate and intrusive.
 S4(1): Pat down search – no authorization is required
 S7(1): Strip search – authorization of officer equivalent to rank of Inspector – person is not
required to strip completely
 S10(1): intimate search – except mouth, nose and ears, other orifices search as vagina and anal
can be searched – Assistant Superintendent Officer authorization
 S13(1): intrusive search – inside the body – only conducted by Government Medical Officer –
authorization by Officer in charge of Police District

5. Answer ALL parts of this question which are separate and independent

(a) Bond was charged at the Magistrates’ Court, Kuala Terengganu with an offence of theft of a gold ring
under Section 379 of the Penal Code. At the trial in the Magistrates’ Court, Pandai, the defence counsel
objected to the charge on the ground that the charge was defective, both as to the form of the charge
and the particulars as to the time, place and person involved. The learned Magistrate stood down the
case and asked the Prosecuting Officer to look into the charge before the plea is taken.
You are the Deputy Public Prosecutor. The Prosecuting Officer approached you for advice on the
necessary requirements to ensure compliance with the relevant criminal procedural rules so that the
charge is legally sustainable. (8 marks)

 S152 – form of charge – it must state the offence, statute and sections mentioned in the charge
o (2): specific name, the offence may be described in the charge by that name only. – for
example, murder. When you kill somebody, you use “murder” to describe.
o (3): if no specific name, as much of the definition of the offence must be stated. You
must read the offence with relating provisions.
o (4): law and section of the law must be mentioned in the charge.
o Illustration (a)
 s153 – requirement of valid charge – it requires time, place and person or thing (against whom
the offence is committed)
 When describing time, describe the date also. (time encompasses date)
 What about a date? If there is a date you can specify, then please state.
 Low Kiat Leng – a date specified is never be a material part unless it is essential part of
the offence. Otherwise, if you leave the date out, it is never mind.
 Sanusin Mat Kardong – give range of date.
 Dato Seri Anwar Ibrahim (2004) – one of the grounds of conviction is quashed due to
no specific date – the date in this case is important.
 s154 – additional provision – if having complied with s152 and 153, and still the charge doesn’t
provide sufficient information to the accused. Then, s154 states please add more requirement
for the accused to understand what is alleged against him.
 *** S153(2): specifically for criminal breach of charge / dishonest misappropriation – MACC,
AMALAH etc. Look at the form of the charge, Form 27.
o Form 27: look at the templates in the statute
o Statute s153(2): criminal breach of trust or dishonest misappropriation of money… gross
sum… dates between which the offence is alleged to have been committed.

(b) Abu is 25 years old. He and Cantik, who is 16 years old (minor), have been jointly charged with an
offence of dishonestly receiving stolen property under Section 411 of the Penal Code.

(i) Advise the Deputy Public Prosecutor as to the Court in which the charge against Abu and Cantik
should be tried. (5 marks)

 Cantik is child – Court for Children

 If Cantik is charged alone, then she will be tried in CFC technically. However, because her case is
being jointly, she will be charged jointly with Abu and heard by other court.
 Here they are jointly charged for dishonestly receiving stolen property under s411 PC.
 S411 PC: sentence is 5 years max or fine or above if it is motor vehicle.
 It falls squarely within jurisdiction of 1st Class Magistrate – max 5 years imprisonment
 S83(1), s85, s87
 Hence, both of them will be tried jointly in Magistrate Court.
(ii) What is the position if Cantik is charged alone? (2 marks)

 Cantik is only 16 years old. According to s2 it is CFC.

 S83(1) CA 2001: her case will be covered by Child Act and she will be heard by Court for
Children.
 S417 covers transfer

Example:

Can both be tried in

Stolen in Penang Penang?

S121 – Penang S125 gives all of these area

(abit in Penang, abit in
Received in Johor Johor) jurisdiction to try the
S121 – Johor matter)

(c) Describe the circumstances in which a Court is exceptionally empowered to hear a criminal cause
or matter which did not arise within the local limits of its jurisdiction. (10 marks)

 General rule: s121 CPC – ordinary place of inquiry and trial – tried by a court within the local
limits of jurisdiction
 Local limit of 1st class Magistrate is assigned by YDPA and (arising in Peninsular under s59 SCA) it
can be seen under s73 SCA
 For High Court, local limit – for states of Malaya and Sabah and Sarawak.
 Exceptions: S122, s123, s124, s125, s126, s417, s127, s127A
 S122: accused is triable in place where act is done or where consequence ensues – illus (a)
o What if he is injured in Sarawak, and he died in KL.
o So the accused may be inquired in HC of Sarawak or KL.
 S123: place of trial where act is an offence by reason of relation to other offences – illus (a)
o Offence of abatement – punishment of abatement is similar to the actual offence
o Both court at where the offence is committed and whenever the abatement is taking
place of have jurisdiction
o Illus (b) – where the goods were stolen and where the goods were received and
retained
o Illus (c) - where the place where kidnapping happens and where the place wrongful
confining took place
 S124: escaping from custody (1), criminal misappropriation or criminal breach of trust (2),
offence of stealing anything (3)
 S125: scene of the offence is uncertain – partly in one area and partly in another, continuing
offence, consists of several acts in more areas = any of these Courts will have jurisdiction
  S126: offence committed on a journey – pass through, or enter into (starting point to end point)
anywhere here the Court will have jurisdiction.
 Once the charge has been initiated, the case can be transferred and aligned with the power of
transfer s417 due to reason there is a need of justice. The court transferred will also have
jurisdiction.
 S217: liability of offences (air craft etc) – dealt with as if it has been committed at any place
within Malaysia

6. Answer ALL parts of this question

(a) Putih was charged at the Sessions Court in Kuala Lumpur for an offence under Section 409 of the
Penal Code. Upon issuance of the certificate by the Public Prosecutor under Section 418A of the Criminal
Procedure Code, the case was transferred to the High Court. Before commencement of the trial, the
Public Prosecutor withdrew the transfer certificate issued under Section 418A of the Criminal Procedure
Code. Counsel for Putih challenged the withdrawal of the certificate. Instead of remitting back to the
Sessions Court, the Public Prosecutor made an application to the same High Court to exercise the
discretion to transfer the case to the same Court.

With reference to the statutory provisions and decided case, what would be your advice if you are
invited by the learned judge to address him on the following issues?

(i) Whether it is legal for the Public Prosecutor to withdraw the transfer certificate? (4 marks) YES

 Dato Sri Mohd Najib Hj Abdul Razak v PP {2019} 5 CLJ 293

o Charges initially fled at SC but later transferred to HC by way of transfer certificate
issued by prosecution - Appeal against decision of HC in allowing application by
prosecution to withdraw transfer certificates. Whether appeal ought to be allowed
o MACCA, AMLA, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (7
charges) – none of the charges have death penalty.
 [52] “We agree with the respondent’s submission that the concept of functus officio applies to a
court of law and not acts of the PP under Federal Constitution. As held by the CA in Badiaddin
Mohd Mahidin v Arab Malaysian Finance, the doctrine of functus officio is part of the doctrine of
res judicata; hence a party cannot ask the court to revisit the same dispute. Therefore, the
appellant’s submission that the PP cannot be said to have the power to withdraw as s418A
certificate as the power is spent when the said certificate is acted on and the PP is there after
functus officio bears no merit.”
o Nabis’s counsel said that once the certificate is issued, PP has no power because PP
already spent his power to transfer the case. He argued PP become functus officio once
the case is transferred.
o Court held that no, functus officio is a court process as res judicata is also a court
process.
o Court held that functus officio doesn’t apply to the PP.
o All the PP did was to act in abundance in withdrawing the certificate. Hence, PP can
withdraw the transfer certificate once it is issued.
 S418A allow PP to issue certificate to transfer a case.
  S418A – once PP issue the cert, the court has no discretion but to transfer.
 After transfer, PP withdrew the transfer certificate because of the decision of Semenyih Jaya,
and Indira Gandhi – in 2019, such decision held that basic structure of prosecution, particular
Amendment Act gains power to the PP to issue the certificate under s418A is seen in Article
145(3)A FC, hence s418A is void and there is no specific provision which states that s418 is void
at that time.
 Hence, these 2 cases held that s418A is unconstitutional and void.
 Hence, this is why PP withdrew the transfer certificate.

(ii) Whether it is legitimate under the law for the High Court Judge to order the transfer of the charge
back to the same High Court without going through a new case registration route? (9 marks)

 Rooting applies to the transfer done under s418A and s417.

 D: Whether the Judge Could Transfer Case Back to Himself
 [60] & [61]
 Nothing prejudicial has happened
 Judge: when the HC judge exercised his power under s417, he is transferring to the HC and he is
not usurping the power

(b) On the hearing date of Putih’s trial, Bijak, a senior practising lawyer, appears and informs the Court
that he wishes to conduct the prosecution against Putih for the criminal offence under Section 409 of
the Penal Code. However, the defence counsel, Pandai objects to Bijak’s authority to conduct the
prosecution.

Advise Bijak, on the criminal procedural law on which he may rely upon in order to establish his
authority to prosecute. (8 marks)

 Article 145(3) FC
 Section 377(b): advocate can conduct criminal prosecution before any court if he is authorized
by PP
 S379: Employment of advocate – to conduct any criminal prosecution and inquiry
 Muhammad Shafee bin Md Abudllah v PP [2019] MLJU 755
o Judicial review issue: decision of PP to appoint someone to conduct
o [112] – [117]
 This issue is addressed in the decision of Muhammad Shafee, the court held that the power to
do so arises from Art 145(3) and s377.
 Can use Dato Seri Anwar’s case and explain that by virtue of S. 376(3) and S. 379 the PP may
appoint Dato Shafee as DPP.

(c) Assuming the case is reverted back to the Sessions Court and at the close of the prosecution; the
learned trial judge found that there is a prima facie case and called upon Putih to enter defence.

Advise Putih on the alternatives open to him. (4 marks)

 3 options
 S173(ha):
 1. Give sworn evidence which he chooses to become a witness
2. Not to become witness and not to give evidence, but give unsworn evidence from dock
(cannot cross-examine)
3. To remain silent, which means doesn’t testify.
 Haffizulah Abdul Samad

7. Answer ALL parts of this question which are separate and independent

(a) Nine Thai nationals were charged and subsequently acquitted for fishing in the Malaysian waters
without a permit, an offence under section 15(1)(a) of the Fisheries Act 1985. After the order of
acquittal, the prosecuting officer applied for all the nine Thai nationals to be released on bail of RM6,000
with one local surety or, and in default, to be committed to prison pending the disposal of the appeal to
the High Court. The Magistrate allowed the application and made an order under Section 311 of the
Criminal Procedure Code. The nine Thai nationals have applied to the High Court for a revision of the
decision of the Magistrate on the ground that the Magistrate had acted beyond the provisions of Section
311 of the Criminal Procedure Code.

Based on the above facts:

(i) Examine the grounds of the application for revision. (10 marks)

 One of the grounds for revision: Illegality – s323 CPC: Power to call for records of subordinate
court.
 If Magistrate acted beyond s311, his exercise of power will be illegal.
 S311: stay of execution pending appeal
 Does s311 extends to this? No, s311 is actually where the sentence and conviction is passed
and it is actually stop the execution to sentence.
 Hence, s311 doesn’t apply.
 S315: Arrest of respondent in certain cases – when an appeal is presented against acquittal, a
judge may issue a warrant directing the accused to be arrested and brought before him, and
may commit him to prison pending the disposal of appeal or admit him to bail.
 Ramanathan Chettiar
 Ment & Ors v PP [1994] 1 MLJ 201 – exactly the same fact
o Held: setting aside the Magistrate’s order in respect of the bail bond on the applicants
but allowing the PP’s application for the court.
o The court recognized the registry has no power with s311, and replace the order with
s315

(ii) Discuss whether the parties before the Magistrate have the right to be heard before the High
Court. (5 marks)

 S326: Permission for parties to appear

o No party has right to be heard before a Judge when exercising his powers of revision.
 S325(2): Power of judge during revision
 o No order shall be made to prejudice of the accused unless he had an opportunity of
being heard, to his own defence.
 Since it is actually an acquittal, to order under s311 is wrong as it is also prejudicial to the
accused.

(b) Discuss the types of order the appellate court may make upon hearing of an appeal. (10 marks)

 S316: Decision on Appeal

o Dismiss the appeal
o If not, the court may make any of the orders
 Appeal from an order of acquittal, reverse the order, and direct that further
inquiry be made, or retried, find him guilty, pass sentence according to law
 Reverse the finding and sentence and acquit or discharge the accused
 Alter the finding, maintaining the sentence, or with or without altering the
finding, reduce or enhance the sentence or alter the nature of the sentence.
 It really depends what was the issue (that’s the reason why there are so many options “or”
above.

MUST SPOT

1st issue: SRC trial appeal grounds specifically prima facie ground, and final judgment ground

 https://www.malaymail.com/news/malaysia/2021/04/05/src-appeal-misdirection-by-high-
court-judge-during-prima-facie-ruling-depri/1963973
 In brief term, SRC trial, Justice Azlan makes finding there is a prima facie case and Najib makes a
defence. Recent decision why there is prima facie case. Highlighted certain issues. Final
judgment: create beyond reasonable doubt case
 2 judgments: Prima facie judgment and Final judgment
 Argument by Najib: in defence case, sought to answer the issue in prima facie judgment
 Can he rely on something that is not mentioned in the final judgment for his defence.

2nd issue: letters of representation

3rd issue: inquest

 Important because there are many deaths in custody

 There is a practice direction in how to deal with inquest
 Article in the Bar to deal with coroner’s custody
 Dato Sri Mohd Najib Hj Abdul Razak v PP [2020] 11 MLJ 808
 Inquest Practice Direction No.1 of 2007
 https://www.malaysianbar.org.my/article/about-us/president-s-corner/pressstatements/press-
comment-malaysian-bar-calls-for-coroners-act-to-enable-greater-clarity-in-inquests
 Press Comment | Malaysian Bar Calls for Coroners Act to Enable Greater Clarity in Inquests - The
Malaysian Bar
 Press Release | Another Death in Custody: A National Affliction That Must Be Eliminated - The
Malaysian Bar
4th issue: Bail pending appeal

 SRC judgment
 3 types of sentences: Imprisonment, fine and whipping
 Stay of execution for all 3 sentences are different.

5th issue: discharge amounting to acquittal and discharge not amounting to acquittal

 Opinion on the correctness of the position

 https://www.nst.com.my/news/crime-courts/2020/06/599291/ag-explains-why-charges-
against-musa-aman-were-dropped
 Musa Aman case

Q5(b) Nov 2017

Speedy was charged for a traffic offence which is punishable with fine or period of imprisonment up to 3
months and a mandatory sentence of disqualification of the license to drive. Speedy had pleaded guilty
to the said offence by way of a letter to Magistrate. The learned Magistrate accepted the plea of guilty
by Speedy and sentenced him to a fine of RM 3,000.00.

Discuss if the learned Magistrate has complied with the relevant criminal procedure applicable to this
situation.

S137 applies to private and non-private summon

(2) In any case relating to an offence punishable by fine only or by imprisonment only of a term not
exceeding three months or by both fine and imprisonment

 Appearance can be dispended

Case of Chow Sai Let v PP: the fact is exactly this. There was a fine, period of imprisonment of max 3
months and disqualification of license to drive. The court answered the disqualification is as much as a
punishment of fine and imprisonment. Hence, it is not a case of s137. There is a additional punishment
of disqualification.

Remand Proceeding

Nov 2015 (b) Abu’s father