POWERS OF PUBLIC PROSECUTOR

 The powers of PP are wide and provided in the FC, CPC and other statutes.
 Article 145(3) the Attorney General shall have power, exercisable at his
discretion to institute, conduct, or discontinue any proceedings for an offence
other than proceedings before a Syariah court, a native court, or a court martial.
 Article 376(1) the Attorney General shall be Public Prosecutor and shall have
the control and direction of all criminal prosecutions and proceedings under this
Code.
 Article 376(1) the Solicitor General shall have the powers of DPP and shall act
as Public Prosecutor in case of the absence or inability to act of the AG.
 In Leong Kok Huat v PP (1998) the accused appealed against his conviction for
an offence on the ground that approval for his prosecution was signed by
Solicitor General as the AG was not around. The court dismissed the appeal and
held that the word absence connotes not only physical absence but also leave on
outstation.
 Article 376(3) and (3A) Public Prosecutor may appoint senior deputy public
prosecutors, deputy public prosecutors, and assistant public prosecutors who
may exercise the powers of the Public Prosecutor except the Public Prosecutor’s
personal powers.
 In PP V Mohd Noor bin Jaafar section 3 of interpretation act provides that PP
means the AG, and includes a DPP appinted under any written law relating to
criminal procedure and DPP could exercise PP powers unless the right and
powers is personally to PP.

INSITUTE PROCEEDING

 Section 145(3) Federal Constitution and section 376 of CPC confer wide
discretionary powers on the Public Prosecutor to institute proceeding.
Power to prefer charge
 In Long bin Samat v PP, the Public Prosecutor had the discretion to prefer
whatever charge he deemed fit and the court could not interfere.
 In PP v Lee Tin Bau it is the discretion of AG as PP to decide what charge to
brings against anyone.
 In Johnson Tan Han Seng, in this case 3 accused was charged on different
charge even though they appeared to have committed the same offence. The
court held that he may discriminate without contravening Article 8 and it is up to
AG to prefer charge.
 In Ten Cheng Poh v PP, under the common law, the prosecuting authority has a
descretion to institute proceeeding and the offence to charge the accused. Such
discretion is conferred upon AG in Malaysia by Article 145(3) of FC.
  In PP v Chan Kam Leong the suspect was first detained under Drugs
Dependants Act. Later the accused was charged under section 15(1)(a) DDA.
The court referred to section 376(1) of CPC and Article 145(3) of FC and held
that Public Prosectuor had the discretion to charge the accused under the DDA.
Power to transfer case
 In PP v Lim Shui Wang power to transfer case in Article 145(3) overrides the
power of High Court to transfer.
 In PP v Ho Huah Teong, the PP has in his discretionary, charged a person of
criminal offence in the session court, the session court without consent from PP
does not have power to transfer the case in the Magistrate although magistrate
court has jurisdiction over the offence.
 Section 417 states the high court power to transfer case.
 Section 418A trials by high court on a certificare by the PP
 Section 418B cases which to which section 418A applicable.
DPP to appoint a prosecuting officer
 PP v Mohd Noor bin Jaafar the PP personally has the rights and powers to
authorise in writing an officer of any government department to do so.
Can PP take over the role of court
 PP v Jorge Enrique Pellon Tellon PP has discretionary power to institute,
conduct, or discontinue proceeding, but once the case comes to court, the power
of PP ceased.
Can we challenge PP decision
 Long bin Samat & Ors v PP anyone who is dissatisfied with the AG’s decision
should seek his remedy elsewhere but not in the courts.
 PP v Chai Yee Ken it is not open to the court to inquire into the grounds of the
Ag’s decision to prosecute as it is up to his discretion.
 PP v Ini Abong and other trials (2008) the court can arrest any form of wrongful
prosecution if the interest of justice demands it.

SANCTION AND CONSENT

 For certain offence, the consent of PP is required to commence proceedings
whilst for other offence, the written sanction of the PP is required.
 In Abdul Hamid v PP, the accused was charged with required consent to be
obtained to the court by the prosecution from the PP. However, the DPP had only
issued a sanction to prosecute. The court held that the charge is illegal because
consent is different from sanction.
  Different between consent and sanction are as follows:
Sanction Consent
More serious offence less serious offence
May be in writing or oral if the DPP For certain offence must be in writing but
conduct the proceedings some are not necessary where
complaints made by the PP

If consent is not obtained, the charge is Only irregularity and may be cured under
illegal and nullity and not curable under s s 442(b) of cpc if there is no miscarriage
422 cpc of justice.

S117A CPC S129 cpc

S 39B S 58 Immigration Act
S126 ca 2001 Section 34 poison act 1952
S58 MACC

In PP v Oie Hee Koi the dpp himself was

the prosecutor where the accused was
charged without the consent of PP. The
counsel objected. The court held that the
presence of PP means implied consent of
the PP.

In PP v Mohamed Halipah the DPP was

the alter ego of PP, his presence is
sufficient to mean consent.

In Goh Keat Peng v PP if a statute

specifically states the consent must be in
writing, then the doctrine of alter ego
cannot apply.

CONDUCT OF CRIMINAL PROCEEDING

 Article 145(3) of Federal Constitution provides that Attorney shall have power
at his discretion to conduct any proceeding for proceeding an offence.
 Section 377 CPC provides that every criminal prosecution before any court and
every inquiry before a Magistrate, shall be conducted by the Public Prosecutor,
the senior deputy public prosecutor, the deputy public prosecutor or the assistant
 public prosecutor, or in a case where the public prosecutor has given written
authority and for seizable offences, conducted by an advocate, a police officer
not below the rank of inspector, an officer of any government department, an
officer of any statutory authority or body or any person employed or retained by
any local authority or any statutory authority body.
 In Repco Holdings Bhd v PP no other authority may be lawfully empowered to
exercise that function.
 Section 378 no one on behalf of PP can appear in any criminal appeal other
than PP, Senior Deputy PP or PP.

DISCONTINUANCE OF PROCEEDINGS

 Article 145(3) Federal Constitution the PP has the wide discretionary power to
discontinue any proceedings for an offence.
 Section 245(1) and (2) CPC also provides that public prosecutor may decline to
prosecute at any stage of the trial before judgement.
 In PP v Mat Radi (1982) it is not function of the court to decide and it is up to
prosecutor to discharge any proceedings.
 In PP v Kuppusamy (1948) the Magistrate can only acquit an accused person
after hearing all the evidence for prosecution.
 In Che Chee Peng v PP (1972) the power of the magistrate to discharge the
accused under section 175(g) is at any stage before prosecution opens its case
and under section 254 on application by the prosecution at any stage of the trial
before judgment.
 In PP v Au Seh Chun PP may inform the corurt that he will no further prosecute
the charfe and tha thereupon the accused shall be acquitted. If the prosectuion
has indicated to the court that it is not interested inpursuing the matter, the court
shall acquit the accused.
 In PP v Lau Ngik Yin (2007) the court must order an acquittal and not DNA
when the prosecutor shown disinterestedness.