UNIVERSITI KUALA LUMPUR

BUSINESS SCHOOL

EAB 21303
COMMERCIAL LAW
GROUP ASSIGNMENT 1

Day/Date: Thursday/16 November 2023

Lecturer : Madam Rohani binti Sahak
Prepared by:

Name Matric Number

Muhammad Haziq Syazwan bin Zulkiflee 62213223646
Muhammad Zaifan Hakim bin Ramli 62213223108
Muhammad Syafiq Aiman bin Suhaimi 62213223649
Muhammad Firdaus bin Mohd Nasori 62213223297

Class : AC 20
Question 1(a)(a)

There were 3 people who committed the offense of robbing the house of Tan Sri
Mahat with weapons, the first named Basir aged 20 years, Roger aged 19 years and the last
one Daud aged 17 years. At the time of the robbery, there was a fight between Daud and Tan
Sri Mahat resulting in death. In the same incident, Roger tried to rape the daughter of Tan Sri
Mahat. So, in this case there are some offenses committed by Basir, Roger and Daud. Their
main offenses are gang and armed robbery, which can be investigated under Section 395 and
397 of the Penal Code which carries a maximum sentence of 20 years in prison and
whipping.

For individual offenses, Basir committed the offense of extortion against the victim
by forcing the victim to hand over all money and valuables while for the offense committed
by Roger was attempted rape of the victim's 15 -year -old child investigated under Section
376 (2) of the Penal Code. Also, Daud who committed the offense of killing the victim by
strangling the victim to death can be investigated Under Section 304 of the Penal Code.

In the given situation, we observed that the composition of subordinate court is the
Session Court. The criminal and civil matters that Basir, Roger and Daud are entertained by
Session Court. Compositions for Session court are appointed by YDPA on the
recommendation of the chief Judge while for the Magistrate's court, it is appointed by the
Sultan or YDPA on the advice of the Chief Justice of the High Court. The Yang di-Pertuan
Agong may by order make up so many Sessions Courts as he may think fit and shall have
power. Subject to this Act or any other written law, a Sessions Court shall have jurisdiction to
hear and determine any civil or assigned to it under this section but for the Magistrate’s court
only bring all cases carrying a maximum sentence of 1 to 10 years imprisonment or a fine of
RM10,000 and cases under the penal code section. The reason why we chose this Session
court as the place to hear their case is because the offense, they committed was serious and
the punishment received was not commensurate with the offense they committed if the case
was placed under the Magistrate's Court. The sentence under the Magistrate’s Court is only a
maximum of 5 years imprisonment, 12 times of whipping or a combination of all three as
compared to the sentence in the Session Court. The Sessions Court has a higher jurisdiction
compared to the Magistrates Court and can hear any offence except those punishable with
the death sentence and can pass any sentence except the death sentence.
 Next, Daud is not eligible to be tried in a juvenile court because he has abetted an
adult above 18 years and he has also committed the murder of intent by killing Tan Sri
Mahat. Therefore, Daud cannot be tried in the Juvenile Court for having committed a crime
with an adult causing the Juvenile Court to have no jurisdiction in hearing his criminal case.
This provision can be seen in Section 83(4) which provides that the trial of such
prosecution case should be conducted in other courts based on the type of prosecution case.
Juvenile court is a court for children that proceeds with any offence containing a minor for
the purpose of hearing, determining, or disposing of any charge against a minor. Juvenile
courts have the additional power to issue judgments on offences committed by minors that
have not reached the age of consent. In this situation, if Daud who committed a criminal act
alone, he will be tried in a juvenile court but in this case Daud has done the act with an adult
so that he can’t be tried in juvenile court despite under 18 years of age a minor. Composition
of the Court for Children in Section 11 of the Child Act 2001 provides that the Court for
children shall consist of a Magistrate who is assisted by 2 advisers that appointed by the
Minister from a panel of persons resident in the respective state. One among the two advisers
shall be a lady. The functions of the advisers are to tell and advise the Juvenile Court on any
consideration affecting the order made on the finding of guilt or other related treatment of
any child brought before it and if necessary, to advise the parent or guardian of the kid.
The Court for Children shall have jurisdiction for the following matters. Juvenile court
is responsible for hearing cases involving the child that is a person under the age of 18 years
under Section 2 of the Children Act 2001 or known as a minor. This issue is in line with the
Adult Age Act 1971 (ACT 21) which set the adult age as 18 years. However, the criminal
proceedings The Court for Children is only conducted against accused children age 10 to 18
years old only. This fact is based on the interpretation of the provisions of Section 2 of the
children Act 2001 and proscribed in Section 82 of the Penal Code. So, in this case Daud
could be pursuant to Section 2 of the Children Act 2001 because he committed the act before
18 years old.

Court for Children has the jurisdiction to try all offences except offences punishable
with death. The word conviction sentence is prohibited to be used instead “a finding of
guilt” or “order made upon finding of guilt.” Where an offence has been proven, the Court of
Children must be considering the following before deciding on the order to be imposed such
as the probation report and opinion of the advisors. The probation is prepared by the
probation officer. It must contain information about with child general conduct, home
surrounding, medical history to enable the court to act in the best interest of the children. The
opinion of both advisors must be recorded and considered. The court is not bound to accept
the opinion but must record its reason for dissenting. Under Section 11 of the Child Act
2001, the Court for Children shall have jurisdiction for the hearing, determining or
disposing of any charge against a child and exercising any other jurisdiction conferred or to
be conferred on the Court for Children by or under this Act or by any other written law.
Another reason why Daud is not eligible to be tried in juvenile court because he was
arrested on his eighteenth birthday. In Juvenile Court, they cannot try a child who has
attained 18 years of age. Court for Children may impose several orders which are the
detention of a child in a place of detention such as sending to Henry Gurney School,
whipping with not more than ten strokes of a light cane. Daud over the age of 14 years will be
jailed and the offense is punishable by imprisonment at the Session Court. Daud who was 17
years old at the time of the commission of the offence was charged in the High Court for the
offence of murder punishable under Section 302 of the Penal Code, this is because murder is
an offence punishable by a death sentence. Daud has reached 18 years of age when he is
charged, Court for Children does not apply for him even if his crime was committed
when he was below 18 years old. This issue is expressly stated in Section 83(3) of the Child
Act 2001, “When a child commits an offence but a complaint in relation to that offence is
brought against the child once he has reached the age of eighteen years, the charge shall be
tried by a session court than a Court for Children.”

Finally, all three of them should be placed under the same court which is the Session
Court so even though Daud when committing the crime has not reached the age of 18 years
but what crime he committed was with an adult that is Basir and Roger. This provision can be
seen in Section 83(4) which provides that the trial of such prosecution case should be
conducted in other courts based on the type of prosecution case. The offenses they committed
were severe and should be punished with the crimes that they committed. We hopefully
justice can be upheld and in favour of the victim.
Question 1(a)(b)

b) Daud, Roger and Daud are from the Session Court, which has civil and criminal
jurisdiction. According to this case, Basir and Roger were accused of committing a crime
when they were adults, while Daud was accused of committing a crime when he was a minor.
The trial court ultimately found all three of them guilty and they also decided to appeal. The
trial court is a court with original jurisdiction over a case in which a trial is held. A general
jurisdiction trial court has the authority to hear any civil or criminal case that has not been
referred to another court exclusively. Based on this case, The High Court of Malaya has
jurisdiction to hear their appeal. Two judges remain on the High Court, one in Malaya and the
other in Sabah and Sarawak. The High Court has original, appellate, and supervisory
jurisdiction. Its unlimited criminal and civil powers are outlined in the Courts of Judicare Act
1964. The High Court hears civil and criminal appeals from the Magistrates' Courts and the
Session Courts as part of its appellate jurisdiction. The High Court also has the authority to
refer to any point of law presented in the appeal to the Court of Appeal for judgement if it
thinks it is in the public interest and of critical importance. Under Section 35 (1) of the
Judicare Courts Act 1964, the High Court has general supervisory and reviewing jurisdiction
over all subordinate courts, and when it appears necessary, the High Court can request a
record of any process in the subordinate court whether civil or criminal, and all proceedings
will be stopped pending a High Court order. Based on this case, Daud, Roger and Daud all
are from Session Court under criminal cases. They must file a notice of appeal with the High
Court within 10 days of the lower court's decision. Aside from that, the criminal cases that
are appealed must require fines exceeding RM25,000. Appeals are normally brought by the
convicted to find reasons for the punishment that has been imposed, believing that there has
been a factual mistake or that the sentence imposed is too harsh. In this case, they were given
an equal punishment of 20 years in prison and whipped according to Sections 395, 397, and
304. They went to the High Court because they thought the Session Court's sentence was too
harsh, but they could only appeal against the sentence’s weight. As a result, they agreed to
file an appeal in order to have their sentence reduced. The lawyer must use the appeal filing
process set out in section 307 if the appeal is against release and acquittal. Within 14 days of
the date of the lower court's ruling, a notice of appeal must be filed. Following the
submission of the notice of appeal, the next step is to await a decision from the high court.
The appeals process is not the same as a retrial. Instead, it will hear the appellant's case and
the respondent's counterargument. The high court will determine whether to accept or
reject the appeal after the submissions are completed. If the appeal against the conviction
and sentencing is denied by the high court, the lower court's sentence and conviction will be
maintained. According to the facts of the case, the three of them must present very
compelling reasons that will enable them to be released from the severe sentence imposed by
the Section Court. If the three of them provide unsatisfactory and unfair reasons to the High
Court, the High Court will uphold the Session Court's decision. Otherwise, if they are
dissatisfied with the new sentence, they may appeal to the Court of Appeal, which is a higher
court than the High Courts. An appeal notice must be filed with the chief registrar of the court
within 14 days of the High Court's decision. The Court of Appeal hears all civil appeals
against decision of the High Courts except where against judgement or order made by
consent. Criminal appeals of High Court rulings are also heard by the Court of Appeal. The
President of the Court of Appeal and up to ten Court of Appeal judges fill up the Court of
Appeal. This court is also heard by three judges or such greater uneven number of judges.
The jurisdiction for the Court of Appeal is to hear and determine any appeal against any High
Court decision on criminal matters. Based on this case, they were unable to reduce the
sentence imposed by the Section court despite being tried in the high court. This is because
the crime they committed is extremely significant because it includes death and violence, as
Amin forced the victim to hand over money and valuables while Adlan attempted to rape the
victim's 15-year-old daughter. Sections 395 and 397 of the penal code can be used to
investigate Amin's case, while section 376 (2) of the penal code can be used to investigate
Adlan’s case. The case of Daud, who committed the most serious crime, namely, murdering
the victim by strangling him to death while the victim was trying to save his life, can be
prosecuted under section 304 of the Penal Code. Finally, if they disagree with the sentence
upheld by the Court of Appeal, they will next appeal to the Federal Courts. Malaysia's highest
court is the Federal Court. The Chief Justice, the President of the Court of Appeal, the Chief
Judge of Malaya, the Chief Judge of Sabah and Sarawak, and six Federal Court judges make
up the Federal Court. Every proceeding in the Federal Court shall be heard and decided by
three judges or such greater uneven number of judges as the chief justice can specify in any
case under section 38(1) of the Courts of Judicature Act 1964. The Federal Court has
jurisdiction over civil and criminal appeals from the Court of Appeals. In criminal cases, an
appeal can be made on a point of law or act against acquittal, conviction, or punishment.
Within 7 days of the court of appeals' ruling, a notice of appeal must be filed and sent to the
federal court. Other than that, the federal court also has jurisdiction to determine
constitutional questions which have arisen in the proceedings of the High Court but referred
to the federal court for a decision. It can be said that the federal court is the court of final
appeal. If the offender's appeal is denied by the federal courts, he will complete the penalty
levied by the court before it; but, if the offender was executed within the time imposed, the
offender can petition the Board for forgiveness. If the appeal is rejected by the high court and
the court of appeals, they will pursue a final appeal in the federal courts. They must have
abundant proof since this is the last attempt to mitigate the sentence for any crime committed.
If the judge denies the final appeal, they must carry out the court's sentence in front of the
appeal court.

Question 1(b)

The laws applied in Malaysia can be divided into two categories. Written and
unwritten law. Written law refers to the law that is enacted by the parliament which possesses
the legislative powers in Malaysia. This includes the Federal constitution, Federal Law and
State Law. Unwritten laws on the other hand refer to laws that are not being enacted by the
legislators and are not being written in any statutes. Unwritten law in Malaysia can be divided
into English law or common law, syariah law, Customary law and Judicial Precedent.

The British Colonial brought their constitutional government and the legal system
used by them in England is known as English Law or Common Law during the period of
British colonization, English Law then remained as one of the most important sources of law
in Malaysia even after the colonization era ended, as the law of Malaysia used today was
enacted mainly based on English Law.

The formation of the Federated Malay State shows that the ruler of the states started
to accept the British intervention in Malaysia. Section 2(1) of Civil Law enactment 1937,
gives the permission to accept the English law provided that the inhabitants permits and
subject to such qualifications as local circumstances render necessary. The unfederated Malay
states started to accept English Law when the English Law formally received and applied by
virtue of Civil Law (extension)ordinance 1951 but indirectly the unfederated Malays State
had accepted the English Law before that date.

English law is an unwritten law. English law is divided by two, which is common law
and rules of equity. Common law and rules of equity were applied in the Straits Settlement by
virtue of the three charters of justice. However, the charters do not apply to the Malay States.
With the introduction of the Residential System in Perak by virtue of the terms stated under
Pangkor treaty 1874, the Malay Sultans were forced to establish the English-style court and
the English judges were appointed. The Civil Law enactment no.3 of 1937 had been enacted;
this marked the first step towards the enforcement of the English Legal System in the Malay
states. The application of the said ordinance was only for the Federated Malay States, but on
31 December 1951, it was extended to Penang and Malacca.

The courts In West Malaysia must follow the Common Law of England and the Rules
of Equity as they were being administered in England on 7 April 1956, according to Section
3(1) of the Civil Law Act of 1956 (cut-off date). The English Common Law and Rules of
Equity, along with statutes of wide application, as they were administered or in effect in
England on 1 December 1951 and 12 December 1949, respectively, will be used by the courts
in Sabah and Sarawak. English Law does not become law in Malaysia after the cut-off date.
As a result, section 3(1) implies that English law was strictly applied in Malaysia prior to the
cut-off date.

Subsidiary legislation also known as delegated legislation is made under power

delegated by the legislation. Subsidiary legislation made by bodies or persons under the
power conferred by Acts of Parliament and Enactment of States Assemblies. In Malaysia,
section 3 of the Interpretation Acts 1948 and 1967 defines subsidiary legislation as any
proclamation, rule, regulation, order, or other instrument made under any Ordinance,
enactment, or other lawful authority and having legislative effects.

The rationale for subsidiary legislation as the implementation of it is very important

because it may help to smooth and improve the administration of the executive power. The
legislative power, namely Parliament, can save time and not have to think much as they can
delegate its authority to the executive authority. The legislature’s primary legislation
generally establishes policies and principles, whereas the government’s secondary legislation
establishes the details of implementation. For example, it gives the provisions of the primary
legislation practical effect.

Judicial review as a mechanism of abuse of power is protecting the fundamental rights

of private citizens from arbitrary behaviour on the part of administrative bodies. Judicial
review fulfils a particular function within the constitution in allowing the individual to
challenge decisions made by the state. Judicial control as the administrative procedures act
provides for judicial review of most agency actions. Judicial review of an agency has acted
beyond its authority or failed to discharge its responsibility. Judicial control as a mechanism
to avoid abuse of power because of a lack of sincerity in the way of gathering information,
thus it is worth investigating because some judges analyse just to follow the law as
determining the conditions for ending the specific abuse of power is difficult.