TRANSFER OF CASES

Raja Badrol Hisham b Raja Mohd Ali

Transmission
- Sec 177A of CPC
Sec 177A(1) of CPC the offence suppose to be tried by
High Court (HC)
-it cannot be prosecuted in
Subordinate Court
-it can only be prosecuted in HC
with consent of PP

Transfer
(i) Done under CPC
(ii) Done under other statute

** Transmission → from subordinate’s court (has no jurisdiction) to High Court (has

jurisdiction)
** Transfer → from subordinate’s court (has jurisdiction) to High Court (has jurisdiction)
Transfer: Movements of cases
 Transfer lateral transfer transfer btw courts
which have coordinate jurisdiction

vertical transfer transfer from a lower

court up to the higher
courtt
Transfer

Sec 177 of CPC

 Trial before a Magistrate
 Transfer before or during trial
 Transfer by the Magistrate or by way of an
application by the DPP
 The term ‘higher jurisdiction’ in the provision
refers to the vertical transfer (transfer from a
lower court up to the higher court).
 s177 of CPC authorized a vertical transfer of
cases.
 s177 allows the Magistrates’ court to transfer
cases to Sessions Court and transfer from
Magistrates’ Court to the High Court as well
When can a case be transferred?
 The term ‘at any stage of proceedings’ in the
provision refers to at any stage at all.
How a transfer is done.
 Under this provision, there are 2 limbs that explain
how a transfer can be done.

First limb THE SUBORDINATE COURT BY ITS

OWN INITIATIVE shall transfer the
case to the court of higher jurisdiction.
e.g when the subordinate court’s judge feel
that higher degree of punishment should be
imposed.
Second limb APPLICATION BY PUBLIC
PROSECUTOR to transfer the
case to the court of higher
jurisdiction.
it can be done before / during the trial.
 Transfer of Cases by the High Court
Sec 417 & Sec 418 of CPC
 Sec 417(2) of CPC provides 4 ways for the
High Court to transfer the case:-
(i) on the report of the lower court
(ii) on application of the PP
(iii)on application of the accused person
(iv) on the High Court’s own initiative
 Sec 417 of CPC involves both lateral and
vertical transfer of cases.
 The grounds on which an applicant may rely
are set out in Sec 417(a)-(e).

 Sec 417(1)(a) & (b) usually involves vertical

transfer of cases.
Cases:
 Sec 417(1)(a) – if it appear to the HC that a fair and
impartial trial cannot be had in any criminal court
subordinate to it
 PP v Fan Yew Teng
Lord Salmon in this case had observed that Sec
417(a) cannot have their strictly literal meaning but
must mean any particular criminal court subordinate
to him or thereto. According to him, it is
impossible to suppose that the Legislature
contemplated that a fair and impartial trial could not
be had in any subordinate court whatsoever.
 Sec 417(1)(b) would seem to be rather
difficult to invoke successfully in present time.
Cases on s417(1)(b) CPC
 Wong Hong Toy v PP (S’pore case)
Lai Kew Chai J of the opinion that this
subsection is relevant only during those time
in the past because during those time judges in
subordinate court are people who do not have
legal background
 Lin v PP (S’pore case)
this case follows the case of Wong Heng Toy’s
case. Coomaraswamy J opined as follows:
“in the light of the decisions I have referred to, for
the provisions of Sec 184(1)(b) to be successfully
invoked today the case must be an extraordinarily
rare one and I find it exterely difficult to think of
one”

** Sec 184(1)(b) of Singapore CPC is in pari materia with our Sec 417(1)(b).
 PP v Dato’ Kee Yong Wee
The reasoning laid down in S’pore court in
Wong Heng
Toy’s case has been adopted in this case by
KC Vorah J.
 Sec 417(1)(c) – may occur in situation where the
court (transferor court) may transfer the case to the
court (transferee court) which nearer to the place of
the crime.

 Sec 417(1)(d) – transfer the case in order to

provide convenience to the parties or witnesses.

 Sec 417(1)(e) – general provision – transfer the

case so as to provide justice.
 The orders which the HC may grant in an
application under this section are set out in Sec
417(1)(aa) – (cc).
 Sec 418(1) of CPC, the modes of application is by
way of motion supported by affidavit
 if the applicant is the PP, the mode of application
will be by way of motion
 Sec 418(4) of CPC - If the applicant is the accused,
he must give PP a notice in writing and a copy of the
grounds invoked upon.
 s.418A & s.418B of CPC
transfer by High Court on a certificate
by PP
 Sec 418A(1) - PP may in any particular case
triable by a subordinate court must issue a
CERTIFICATE specifying the HC in which the
proceedings are to be transferred.

 Sec 418A(2) – requires such power to be exercised

by PP personally. This means that even a DPP will
not be competent to issue the said certificate.
 Sec 418B – the issue of CERTIFICATE to
transfer cases to the HC can only be done
when :-
► the accused person has not pleaded
guilty
► no evidence in respect of the case against
him has begun to be adduced.
Transfer under other statutes
 Sec 25(2) of Court of Judicature Act
- HC shall have additional powers as set out in the
Schedule in CJA, however the additional powers can
only be exercised upon authorization of any written law
or rules of court.

 One of the additional power -Para 12 of the Schedule

in CJA – HC has power to transfer any proceedings to
any other court or to or from a subordinate court.
 PP v Lim Shui Wang
the accused were charged with drug trafficking
under Sec 39B of DDA. The learned HC judge
ordered the case to be transferred back to the
Special Sessions Court for trial. Issue :
whether the HC judge had properly exercised
that power.
Held : the transfer of these cases from HC to
subordinate court was not proper in the
circumstances.
Suffian LP ; “in or judgment there is written law
relating to the power of transferring proceedings
from HC namely Rules of The High Court as regard
to civil and the Criminal Procedure Code as regard
to criminal proceedings.
As the cases in question are criminal, in our
judgement the learned judge could transfer them
only in accordance to Ss 417,418,418A of CPC ….
and Art 145(3) of Federal Constitution”
 By virtue of this case, the “other written law”
in Para 12 of the Schedule in CJA refers to
Ss 417, 418, 418A of CPC and Art.145(3 A)
of Federal Constitution.
Sec 99A & 104 of Subordinate Courts Act
1948
 Sec 99A of SCA – “…every Sessions Court and
Magistrates’ Court shall have further powers and
jurisdiction set out in the Third Schedule”.

 Para 3(2) of the Third Schedule – “Power, on

application or of its own motion, to transfer any
proceedings to another court of co-ordinate
jurisdiction.”

 Sec 104 of SCA – “a Sessions Court judge or a

Magistrate shall have jurisdiction, to order…that the
cause or matter be transferred to any other Sessions
Court or Magistrates’ Court, as the case may be.”
Sec 41A of Dangerous Drugs Act
 Sec 41A (1) of DDA – “where any case in
respect of an offence under this Act is triable
exclusively by High Court or is required by the
Public Prosecutor to be tried by the High
Court, ….. transmit the case to the High
Court..”

 Sec 41A(4) of DDA – “The provisions of sub-ss

(1), (2) and (3) shall have effect
notwithstanding any other written law to the
contrary.”
Sec 11 of the Firearms (Increased Penalties) Act 1971

 Sec 10(1) of FIPA – “a Sessions Court shall

have jurisdiction to try all offences under this
Act except offences under Sec 3 or 3A”
 Sec 10(2) of FIPA – “the High Court shall
have jurisdiction to try any case in respect of
any offence under this Act, if the PP requires
any such case to be tried by the High Court.”
 Sec 11(1) of FIPA – “ where any case in respect
of an offence under this Act is required by PP to
be tried by the High Court,… transmit the case
to the High Court…”
 Sec 11(4) of FIPA - “The provisions of sub-ss
(1), (2) and (3) shall have effect notwithstanding
any other written law to the contrary.”
Provisions under the Essential (Security
Cases) (Amendment) Regulation 1975

 Reg 2(1) – ‘Security offence’ = either an

offence against ss 57, 58, 59, 60, 61, or 62 of
the Internal Security Act 1960, or any
offence against any other written law the
commission of which is certified by the
Attorney-General to affect the security of the
Federation
 Reg 8(1) – “the Public Prosecutor may at any time
before the trial of a security case by notice served on
the trial court, apply for the transfer of the case to be
tried by another court at any place in Malaysia and
the case shall thereupon be forwarded to the
appropriate court in that place which in turn shall
proceed to fix a date for the trial as aforesaid”.