 

Topic 2
 TOPIC OBJECTIVE: To give an overview of the Malaysian
criminal court system and its jurisdictions.

 TOPIC LEARNING OUTCOME (TLO): Student should be

able to ascertain the criminal jurisdictions of the courts in
Malaysia.
 S.6 CPC: The courts for the administration of criminal justice in
Malaysia shall be those constituted pursuant to

Courts of
Federal Subordinate Courts Any other
Judicature Act
Constitution Act 1948 (SCA) law
1964 (CJA)
 Courts constituted by any other law

o Courts for Children

• S.11, Child Act 2001

o Native Courts
• S.3, Native Courts Enactment 1992 (Sabah)
• S 3, __________________________(S’wak)

o Syariah Courts
• S.40, Administration of Islamic Law (Federal
Territories) Act 1993 (Act 505)
* Subordinate Courts (Amendment Act 2010 [A1382] which comes into force 1/3/2013 –
abolished the Penghulu’s Court
 Literal definition:

 Technically may refer to:

o legal authority/power;
o range of judicial/administrative power

 Generally, the term is used to describe the authority & power of

the courts
- to adjudicate disputes; and
- to ward (protect) & enforce its pronouncement.

 Since jurisdiction is often used to describe the powers of the court,

the two words are often used interchangeably.
 However, the courts have recognised the distinction between the two
terms.

Hap Seng Plantations (River Estates) S/B v. Excess Interpoint S/B

[2016] 4 CLJ 641, FC refer to Lee Lee Cheng v Seow Peng Kwang
[1960] MLJ 1
Thomson CJ: …in the Ordinance there is a distinction between the
jurisdiction of a Court and its powers, and this suggests that the word
"jurisdiction" is used to denote the types of subject matter which the
Court may deal with and in relation to which it may exercise its
powers. It cannot exercise its powers in matters over which, by reason
of their nature or by reason of extra-territoriality, it has no
jurisdiction. On the other hand in dealing with matters over which it
has jurisdiction, it cannot exceed its powers.
Dato' Seri Anwar bin Ibrahim [2011] 1 MLJ 158, FC
Munawar Ahmad Anees [2009] 2 MLJ 1, FC
Abdul Ghaffar bin Md Amin v Ibrahim bin Yusoff [2008] 3 MLJ
771, FC
Tan Sri Eric Chia Eng Hock [2007] 1 CLJ 565, FC
The prominent types
Chapter XIV
 S.9 (a) CPC
Every M shall have cognizance
(e.g. District of Jasin: all A MC shall have jurisdiction to
of andwithin
places power thatand authority to -
district) - hear & determine any …
hear, try, determine & dispose
criminal cause / matter arising
of in a summary way
within the local limits of
prosecutions for offences
jurisdiction assigned to it
committed wholly / in part
under this section, or, if no such
within the local jurisdiction of
local limits have been assigned,
such M.
arising in any part of Peninsular
Malaysia.
 S.59 (2) SCA
S.9 (a) CPC
(e.g. DistrictS.9 (a) CPC
of Jasin: all A SC shall have jurisdiction to -
places within that district) hear & determine any …
M – include SC
criminal cause / matter arising
within the local limits of
jurisdiction assigned to it
under this section, or, if no such
local limits have been assigned,
arising in any part of Peninsular
Malaysia.
Taman Rimba (Mentakab) Sdn Bhd v Sin Yew Poh Tractor Works
[2002] 5 MLJ 321
“The subordinate courts have the restriction of local limits of
jurisdiction assigned to them. When a cause on matter arose outside its
local limits then it has no jurisdiction to hear the substantive matter.”
 S.22(1)(a) CJA
The HC shall have jurisdiction to try all offences
committed within its local jurisdiction.
 Syarikat Nip Kui Cheong Timber Contractor v. Safety and General
Insurance Co. Sdn. Bhd. [1975]2 MLJ 115
‘The definition of local jurisdiction sets out and determines the territorial
jurisdiction of either of the HC.’

 Lt Kdr Balakrishnan v Menteri Pertahanan Malaysia [1994] 2 AMR

1045
‘The word "local jurisdiction" in para (a) s. 3, Court of Judicature Act
1964 should not be interpreted as creating separate jurisdiction
according to the States listed in the said paragraph.’

#Tengku Abdul Muiz Shah [1983] 1 MLJ 422 (wrong because decided
that HC JB and HC KL as separate court)
Concurrent jurisdiction

 Sova Sdn Bhd v. Kasih Sayang Realty Sdn Bhd [1988] 2 MLJ 268
‘HC located at Penang or at Alor Setar is but a branch of the HC in
Malaya and each branch of the HC in Malaya located in any state
has concurrent jurisdiction to entertain any civil proceedings
regardless of whether the cause of action arose in another state.’
 Hap Seng Plantations (River Estates) S/B v. Excess Interpoint
S/B [2016] 4 CLJ 641, FC
“Both the HC in Malaya and the HC in Borneo have separate and
distinctive territorial jurisdiction.”

 Dayasar Corp Sdn Bhd v. CP Ng & Co Sdn Bhd [1990] 1 CLJ

262
 Jurisdiction over cases committed outside Malaysia

 General rule:

Lee Szu Yin [1962] MLJ 49

…In Macleod v Attorney-General for New South Wales, Lord
Halsbury LC, delivering the judgment of the Privy Council, said:
“All crime is local. The jurisdiction over crime belongs to the country
where the crime is committed, and, except over her own subjects,
Her Majesty and the Imperial Legislature have no power
whatever.”
The same principles apply in this country.
Exception:

S.22(1)(a) CJA - The HC shall have jurisdiction to try all offences

committed -
(ii) on the high seas on board any ship/on any aircraft registered in
Malaysia;

(iii) by any citizen/any permanent resident on the high seas on board

any ship/on any aircraft;

(iv) by any person on the high seas where the offence is piracy by the
law of nations
 committed Kasayah Dhalin
Hussein [2012] 9 CLJ
1029

(a) on the high seas on board any ship / aircraft registered in Malaysia
(b) – (i)
may be dealt with as if it had been committed at any place within
 S.22(1)(b) - The HC shall have jurisdiction to try
- offences under Chapters VI (offences vs the state) &VIA (offences relating
to terrorism) of the PC; and
- offences under any of the written laws specified in the Schedule to the
Extra-Territorial Offences Act 1976 [Act 163], (OSA & Sedition Act); or
- offences under any other written law the commission of which is certified
by the AG to affect the security of Malaysia
Committed
(i) on the high seas on board any ship/on any aircraft registered in Malaysia;
(ii) by any citizen/any permanent resident on the high seas on board any ship /
on any aircraft;
(iii) by any citizen / any permanent resident in any place without and
beyond the limits of Malaysia;
(iv) by any person against a citizen of Malaysia;
(v) by any person against property belonging to the Gov of Malaysia /
the Gov of any State in Malaysia located outside Malaysia, including
diplomatic/consular premises of Malaysia;
(vi) by any person to compel the Gov of Malaysia/ the Gov of any State
in Malaysia to do / refrain from doing any act;
(vii) by any stateless person who has his habitual residence in Malaysia;
(viii) by any person against / on board a fixed platform while it is
located on the continental shelf of Malaysia; or
(ix) by any person who after the commission of the offence is present in
Malaysia.
Kasayah Dhalin Hussein [2012] 9 CLJ 1029
The applicant, a Somalian, was jointly charged with 6 other Somalians in the
HC under s. 3 of the FIPA 1971 with discharging firearms at the Royal
Malaysian Navy ('RMN') personnel while hijacking a ship in the Indian
Ocean about 250 nautical miles off Oman. A special team from the RMN
arrested the applicant and 6others and brought them to Malaysia where they
were re-arrested by the police. The applicant applied to stay/strike out the
charge against him, arguing that the Malaysian HC had no jurisdiction to try
him for the purported offence as it occurred outside the local jurisdiction of
the HC on a vessel which was not registered in Malaysia.
Held: S.22(1)(b)(iv) CJA conferred jurisdiction on the HC to try the offence
allegedly committed by the applicant. The section was clear and
unambiguous.
  
 If criminal liability runs from extra-territorial to local jurisdiction

Yong Nam Seng [1964] 1 MLJ 85

Declaration of dutiable goods was prepared in Malacca but signed in
Singapore. It was then presented at Johor Bahru for examination
by custom officer.Tthe signing of the form in Singapore and the
presentation of the form at Johore Bahru is a continuous act
culminating in an act committed within the jurisdiction of the
Court at Johore Bahru.

Loh Ah Hoo [1974] 2 MLJ 216

Lee Szu Yin [1962] MLJ 49 - to be distinguished (Accused is not the
person who prepare and sign the declaration form)
 S.419: Even though the proceedings took place in a wrong local
area… the finding, sentence/order shall not be set aside unless it
resulted in a failure of justice.

# Irregularity not illegality

Original jurisdiction
• Power to hear a case and pass a sentence

(a) Trial/Hearing jurisdiction

• What can be tried in a particular court

(b) Sentencing jurisdiction

• What can be imposed by a particular court
a) Trial/Hearing Jurisdiction: S.85 SCA
All cases where the max sentence not exceed 10 yrs
imprisonment/with fine only, also offences under s.392 (robbery-
14yrs) and s.457 (housebreaking by night-14yrs).

 What if the punishment include whipping?

e.g. S.39A(2) DDA, S.379 PC (second offence of theft)

Lee Heng Kooi [1993] 1 CLJ 132  – offence under s.397

 Not exclusive to MC i.e. SC also has jurisdiction.

Nadarajah [2000] 4 MLJ 373

“S.85 of the Act does not oust the jurisdiction of the Sessions Court
in respect of offences falling within the jurisdiction of the
Magistrates' Court.”

 Discretion of PP to choose which court

A.145 (3A): The AG has the power to determine the courts in which
any proceedings shall be instituted.
Tengku Hitam [1962] MLJ 414
Before a case is presented in Court the prosecution must first satisfy
itself whether the maximum punishment which such Court can
impose is adequate. If it thinks that such sentence is inadequate the
case should be brought before another Court. Ordinarily a case should
be brought before the Court which has jurisdiction to try it. For
example, a case which is ordinarily triable in a MC should be brought
in that Court and should only be brought in the SC if the prosecution
is of the opinion that upon conviction the maximum sentence which
can be imposed by the M is inadequate.
 Exception

 may hear cases exceeding the prescribed limit if there is a specific

provision

e.g. S.41 DDA gives jurisdiction to 1st Class MC to try any offences
under the Act except drug trafficking. Therefore, 1st Class MC can
hear a case of drug possession under S.39A(2) though the
punishment is life imprisonment (30yrs)
b) Sentencing Jurisdiction: S.87 SCA
Imprisonment 5 years max
Fine RM 10,000 max
Whipping 12 strokes max

Exception
(i) Proviso to S.87 (1)
The court may award the full punishment, if jurisdiction is given to
the Court to award punishment for any offence in excess of the power
prescribed by this section by any law for the time being in force (i.e.
there is a specific provision/law).
Example:

S.18(3) Betting Act 1953

S.16(3) Betting Act - fine max RM200k
• Cheong Ah Cheow [1985] 2 MLJ 257
• Yap Sin Peng [1986] 2 MLJ 66


S.133 Customs Act – fine not exceeding RM500k

 S.41 DDA 1952

S.12(2)DDA - fine not exceeding RM100k
(ii) S.87(2)
The court may award the full punishment, if it appears by reason of
any previous conviction/his antecedents, a punishment in excess of
that prescribed by subsection (1) should be awarded. He must record
his reason in doing so.

Example:
S.379 PC provides that theft is punishable with imprisonment up to 7
years. If the accused was convicted for theft and he has previous
record, a 1st class MC has jurisdiction to impose a sentence exceeding
his limit of 5 years’ imprisonment by imposing the full punishment -
7 years.
Govindnan a/l Chinden Nair [1998] 2 MLJ 181
Abdul Wahab [1970] 2 MLJ 203
Tengku Hitam [1962] MLJ 414

 Prior to 2013 – It also has Appellate Jurisdiction

• S.86 - hear criminal appeals from any decision of the Penghulu’s
court.
Subordinate Courts (Amendment Act 2010 [A1382] which comes
into force 1/3/2013 – abolished the Penghulu’s Court
 S.102: MC may sentence imprisonment
- to commence the one after the expiration of the other in such order
as the court may direct (consecutive); or
-to run concurrently.

Subject to proviso (a) – the aggregate periods of imprisonment not

more than 20 years; (only for MC)
a) Trial/Hearing Jurisdiction: S.88 SCA
All cases where the max sentence not exceed 12mths
imprisonment/with fine only.

b) Sentencing Jurisdiction: S.89 SCA

a) Trial/Hearing Jurisdiction: S.63 SCA
All cases EXCEPT those punishable with death

Nadarajah [2000] 4 MLJ 373

b) Sentencing Jurisdiction: S.64 SCA

All type of sentence EXCEPT punishment of death
a) Trial/Hearing Jurisdiction: S.22 (1) CJA
All offences.

b) Sentencing Jurisdiction: S.22 (2)CJA

Pass any sentence allowed by law
Tan Sri Eric Chia Eng Hock [2007] 1 CLJ, FC following Tengku
Abdul Muiz Shah [1983] 1 MLJ 422

‘In the sphere of criminal jurisdiction, the HC has three

jurisdictions, namely, original, appellate and revisionary. With
regard to its original jurisdiction, s.22(1)(a)(i) of the Act states that
the HC shall have jurisdiction to try all offences committed within
its local jurisdiction...
o A.121(2) (a) read with A .128(3)
shall be such as may be provided by federal law. (CJA)

 S.81– The Federal Court for the purposes of its jurisdiction under
A. 128(1) and (2) of the Constitution (herein called the - original
jurisdiction) shall have the same jurisdiction and may exercise the
same powers as are had and may be exercised by the HC.
SPECIAL COURT

 Trial/Hearing Jurisdiction: A.182 (3)

Exclusive jurisdiction to try all offences committed in the Federation
by the YDPA/any of the Rulers of the States.

 Conditions:
(i) A.183: must first obtain consent from the AG prior to institution
of any action.
(ii) Must be Malaysian citizen

Faridah Begum bt Abdullah v Sultan Hj Ahmad Shah [1996] 2

CLJ 159  - P in this case is a Singaporean
COURTS FOR CHILDREN

1) Trial/Hearing Jurisdiction: S.11(5)

Hear all offences except offences punishable with death.

2) Sentencing Jurisdiction:
 S.96 – cannot impose imprisonment unless the child is 14 yrs and
above.

 S.97 –
The child shall be detained in prison at the pleasure of the
YDPA/Ruler. (the period will be determined by YDPA)
Kok Wah Kuan [2007] 6 CLJ 341
On plain reading of subsection (2) of s. 97 it is clear that it empowers
the court, after convicting a person who was a child at the time of
commission of an offence punishable with death, to make an
alternative order instead of imposing a sentence of death. In my view
the alternative power to make such an order as provided for by the
subsection is no less than the power of the court to impose a sentence
or punishment on a child convict albeit in a different form, namely, to
the care of the YDPA or to the Ruler or to the Yang di-Pertua Negeri
depending on where the offence was committed. Hence, with respect
I do not think there is anything unconstitutional in the scheme since it
is still the court that makes the order consequential to its conviction
order.
1) HC
S.27 - hears all criminal appeals from the subordinate courts

2) COA
A.121(1B) – appeal from HC’s Judge decision not HC’s Registrar

(i) S.50(1)(a) CJA – hear any criminal appeal from decisions of the
HC in exercise of its original jurisdiction (i.e. the case start at HC)

(ii) S.50(1)(b)– hear any criminal appeal from decisions of the HC in

the exercise of its appellate/revisionary jurisdiction in respect of
any criminal matter decided by the SC (i.e. the case start at SC)
(ii) S.50(2) - against any decision of the HC in the exercise of its
appellate/revisionary jurisdiction in respect of any criminal
matter decided by a MC but such appeal shall be confined to only
questions of law which have arisen in the course of the
appeal/revision.

3) FC
 S.87– hear and determine any appeal from any decision of the
COA in its appellate jurisdiction in respect of any criminal
matter decided by the HC in its original jurisdiction subject to any
rules regulating the proceedings of the FC in respect of appeals
from the COA.
 Sia Cheng Soon v. Tengku Ismail Tengku Ibrahim [2008] 5 CLJ
201
S.87 relates to the FC's jurisdiction to hear and determine criminal
appeals. This section allows appeals of any criminal matter
decided by the HC in its original jurisdiction only. It does not
provide for appeals in criminal appeals originating in the
subordinate courts. According to s.50(1), criminal cases decided by
the SC may be appealed up to the COA... S.50 read with s.87
means that, criminal matters originating in the SC... must end at
the COA.
 Tan Sri Eric Chia Eng Hock (No 1) [2007] 1 CLJ 565
 Ahmad Zubair Hj Murshid [2014] 9 CLJ 289, FC
 Munawar Ahmad Anees [2010] 1 CLJ 802
(1) HC

S.31 CJA
The HC may exercise powers of revision in respect of criminal
proceedings and matters in subordinate courts in accordance with any
law for the time being in force relating to criminal procedure.
1) HC

A.121(1):There shall be 2 HC of co-ordinate jurisdiction and status,

namely - (1) HC in Malaya; and (ii) HC in Sabah and Sarawak.

 Hap Seng Plantations (River Estates) S/B v. Excess Interpoint

S/B [2016] 4 CLJ 641, FC
“Both the HC in Malaya and the HC in Borneo have separate and
distinctive territorial jurisdiction.”
 S.15(1) CJA & S.101(1) SCA - The place in which any court is
held for the purpose of trying any cause/matter, civil/criminal, or
holding any inquiry, shall be deemed an open & public court to
which the public generally may have access.

Lee Boon Tuan [1960] MLJ 179

…nor that the interpretation of the expression "the place in which
any criminal Court is held" is necessarily confined to the very
building that has been set up by the State for the conduct of a
trial….The place itself rather than the building is to be regarded as
an open Court. There is nothing in the Code which limits the right
of the Court to conduct any inquiry/try any offence outside the
Court building so long as the public are not specifically excluded.
 S.12(3), Child Act 2001
No person shall be present at any sitting of a Court For Children
except —
(a) members & officers of the Court;
(b) the children who are parties to the case before the Court, their
parents, guardians, advocates & witnesses, and other persons directly
concerned in that case; and
(c) such other responsible persons as may be determined by the
Court.