Ultimate Note of Civil Procedure 2

“In Notes, We Trust”

This note is made 100% based on Dr Janaah’s lectures.

They are contributed by all the 44 unsung heroes/ heroines below from the batch of 2016/2017:

1) Aaika Zulaika 16) Hanis Hazidi 31) Nur Farehah

2) Adam Huang Tung Kai 17) Iqbal Harith Liang 32) Raihana
3) Benjamin Kho Jia Yuan 18) Jasmine Ha 33) Shazwin Shaima
4) Cassie Chong Kai See 19) Jean Lee Jia Ying 34) Soh Lip Shan
5) Chai Siu Shian 20) Jocelyn Chin Yen Yi 35) Soin Michelle
6) Cherishe Ng Phuay Hui 21) Jonathan Chong Jialiang 36) Suhaili
7) Chin Zi Yuan 22) Khirtigha Raja Ratanam 37) Tan Eng Jun
8) Chong Jia Wei 23) Kum Zhen Kit 38) Tan Soo Yew
9) Corina Koh Pei Ling 24) Lee Sze Yin 39) Tan Wan Jing
10) Corina Robert 25) Linda Wong Li Ding 40) Valerie Yeo Li Ann
11) Diong Pei Jing 26) M. Muhaimin Rosli 41) Wong Jia Yi
12) Donna Bong Qian Wei 27) M.k.Yong @ Loo Yong Feng 42) Wong Zi Ying
13) Esther Hong Hui Jun 28) Malarvili Kunasegeran 43) Yeap Yee Lin
14) Farhana Ishak 29) Mizah 44) Zarif Khairuddin
15) H’ng Yen Jun 30) Ng Poh Shen

None of the people above shall be blamed for any wrong information in this note.
Otherwise, do your own note. Thank You.

Table of Contents

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 No. Chapter Subtopic Page

1 Summary Trail Intro- 173(a) 1 – 10

Plea of guilty s 173(b), Stage of pleading guilty 11 – 28

Commencement of trial s 173 (c), (d), (e) 29 – 34

Standard of Proof 173 (f), (h) & (m) 35 – 45

Section 173 para (g) - (o) 46 – 51

2 Court for Children 52 – 62

3 High Court Trials 63 – 74

4 Matters In Relation To Trial Submission 75 – 80

Questions by Court, View By Courts & Compoundable 81 – 88

Offences and

Adjournments 89 - 95

Part-Heard Cases, s261 – Change of Magistrate during 96 – 103

Hearing

Defence of Alibi 104 – 108

Witnesses, Tendering of Reports & Demeanour of Witness 109 – 119

5 Sentencing 120 – 147

6 Appeal 148 - 161

7 Revision 162 - 167

The note that you are using now is the result of the collective hard work done by all the students mentioned in the
cover. The lecture notes contributors had to listen back to Dr Janaah’s lecture recordings to type out these notes. All
these notes had to be checked and edited by the editors to avoid any wrong or incomplete information. So, if you are
not a contributor of this note and are using it, kindly don’t edit the names above as an acknowledgement of our
efforts. Thank you.

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 Chapter 1: SUMMARY TRIAL

1. INTRODUCTION

1.1) MEANING OF "SUMMARY TRIAL"

Francis Ng Aik Guan
- "Comprehensive trial procedure, which can be dealt with from the beginning to the end by a subordinate
court (magistrate court & sessions court) in the prosecution of a particular offender"

Sheridan, L.A. & Tan Boon Teik

- "Summary Trial means trial by a Magistrate or a junior judge sitting alone, and is the procedure for
comparatively minor, but not necessarily by any means trivial, offences"

Sarkar on Criminal Procedure

- "It is a speedy trial dispensing with unnecessary formalities or delay."

Mallal's Criminal Procedure

- "However, the proceedings are to be conducted with the same care as in regular trials or perhaps with
more care so that the accused may not entertain any apprehension of failure of justice on account of the
summary procedure"
- Note: still have to go through examination, no opening statement

1.2) Difference between trial in subordinate courts and high courts.

● Difference in formality.
● Most cases are heard in subordinate courts and there is less formality.
● High Court usually hears high-profile cases.

2. THE GOVERNING PROVISION: SECTION 173 CPC

2.1) Introduction
● In summary trial, the court must follow everything mentioned in section 173
● Section 173 provides for the procedures in summary trials from (a) - (m) (the provision is too long to be
put here, please read the provision first)
● Each paragraph will be discussed extensively in subsequent chapters.

2.2) General rules or interpretation for S173:

● "Magistrate" in section 173 shall apply the same to a Sessions Court judge
Tengku Abdul Aziz v PP [1951] 1 MLJ 185
Held : “the combined effect of the 2nd Schedule to the Criminal Procedure (Amendment) Ordinance
1947 and s 61 of the Courts Ordinance 1948 is to make the procedure laid down by section 173
of the CPC for summary trial by Magistrates applicable to summary trials in the Sessions Court.”

● A breach of section 173 would amount to illegality and not irregularity

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 GH Bijapur v State [1990] Karn. 1014
Held : The provisions of section 262 (Malaysian section 173) of the Code, are imperative and
peremptory. A breach thereof would amount to illegality and not an irregularity."

3. MANNER OF SUMMARY TRIAL

3.1) General matters the Magistrate has to take into account:

Muthusamy v PP [1948] MLJ 57
Held : Magistrate ought to remember:
1. The trial is summary;
2. Evidence must only be legally relevant;
3. Rules of evidence enforced strictly on both sides; and
4. Discretionary power to be exercised with regard to gravity of offence .
● Dr. Jaanah:
○ court must still follow the admissibility and relevancy of evidence
○ It goes to the weighing of the evidence. whether the court believes the evidence.
○ "discretion" = judicial discretion. judge must follow settled principle.

3.2) Summary Trial must be done in open court

● Generally, the judiciary must be open
● Only certain proceedings are done in camera (done privately in judge's chamber. Dalam kamar)
● R v Dorasamy Pillai (1888) 4 Ky 350.
Held : The Magistrate sitting in his summary jurisdiction must hear the case in open court, as
the essential of a ‘court’ is that it should be held in public
: When not in session, the Magistrate has no jurisdiction to hear and sentence
● Mohamed Ghazali Ibrahim [1998] 2 CLJ 213

3.3) Evidence must be dealt with in the presence of the accused

● Section 269 CPC
(1) The evidence of each witness taken in inquiries under Chapter XI shall be read over to him in the
presence and hearing of the accused, if in attendance, or of his advocate, if he appears by advocate,
and shall if necessary be corrected.
● Why:
○ He has the right to defend himself
○ Hence he has to know the evidence against him

3.4) Concept of Audi Alteram Partem must be observed

● Meaning of Audi Alteram Partem
○ Audi alteram partem is a Latin phrase meaning "listen to the other side", or "let the other side
be heard as well".
○ It is the principle that no person should be judged without a fair hearing in which each party
is given the opportunity to respond to the evidence against them
○ Under this principle, the court will have to hear from both sides in a proceeding.

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 ○ The court has to suspend all judgment until the end of the defence case, then evaluate each
and every witness and exhibit, then come to a conclusion whether the prosecution has proved
its case beyond reasonable doubt.
● Maimunah Samad v. PP [1997] 3 CLJ Supp 46
Facts : The trial went on but the defence’s witness and prosecution’s witness were examined
without her presence.
Held : “It is really common sense and elementary law that a person must not be condemned
unheard. In these proceedings, most of the prosecution witnesses and defence witnesses
were heard without the accused present. As such, she was deprived of her right to cross-
examine these witnesses. It is unthinkable that this should have taken place, it is perverted
justice.”

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 Chapter 1, Part 1: THE CHARGE (S173(a) CPC)

1. GOVERNING SECTION: S173(a) CPC

S173(a) provides for what must be done when an accused to brought to the court:

Section 173(a) CPC

When the accused appears or is brought before the Court, a charge containing the particulars of the offence
of which he is accused shall be framed and read and explained to him, and he shall be asked whether he is
guilty of the offence charged or claims to be tried.

1.1. Meanings
● Meaning of "accused"
- Aiver, Law Terms and Phrases
"The person against whom a complaint is given to a court that he has committed an offence. He
is also a person who is charged in a trial"

● Meaning of "appears"
- The accused is said to ‘appear’ when he comes to court on his own without being escorted by
the police.
- This may take place in 2 instances:
1. When he has been released on bail; or
2. When he is summoned to appear under section 136 CPC1

● Meaning of "is brought"

- The accused ‘is brought’ before the court by the police when he is held under a remand order
under section 117 CPC2 and be held either:
1. in the police lock-up; or
2. in the prison.

2. ISSUE: HANDCUFFING THE ACCUSED

2.1. Revision: Key Principles of Criminal Justice System
1. Presumption of innocence
2. Fundamental liberties
3. Rule against double jeopardy
4. Equality
5. Right to a fair trial

2.1.1 Meaning of right to a fair trial

1. Presumption of innocence
2. Burden of proof is on prosecution
3. Accused is entitled to the benefit of doubts
Eg Case: [Hanif Basree]
1
Issue of Process
2
Procedure where investigation cannot be completed within twenty-four hours
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 Fact : This is a rape murder case. Evidence showed high probability of the presence of another
individual: eg. semen of another person on the victim.
Held : The accused was acquitted because the defence raised a reasonable doubt. The accused
raised a reasonable doubt.

2.1.2 Fair trial - due process

1. Expeditious & no unnecessary delays. (but cannot be too speedy also. kangaroo court3)
2. Grounds of decision to be informed. both parties must have the opportunities to be heard
3. Equality principle
4. Right to counsel
5. Conviction only if defence failed to raise reasonable doubt

2.2. Introduction to the issue on handcuffing

● Usually before an accused person is brought into the court, he/she will be handcuffed.
● This can be due to safety reasons.
● However, the moment he/she enters the court, the handcuff should be taken off.

2.2.1. The rule: No handcuffs unless essential

● Court is a public place. Handcuffing the accused implies that he has committed the crime.
● The accused is presumed to be innocent until proven guilty, hence the accused can’t be
handcuffed in the court (it is however permitted when he is out of the court) prior to, during &
after trial except when:
1. The accused is violent
2. The accused has prior attempts to escape
3. It is deemed necessary to use handcuff.
● However, even with the above cases, the PP must always apply to the court to handcuff the
accused and such application must be supported with evidence.

[PP v. Wee Swee Siang] [1948] MLJ 114

Held
: An accused person is innocent until proven guilty, and restraint is not usually required.
: Courts should refrain from the use of handcuffs on an unconvicted person unless essential
: Unless the accused is violent or has committed a crime of violence or that he may attempt to
escape.

[Yaakub bin Ahmad] [1975] 2 MLJ 223

Held
: As a person is presumed innocent until proven guilty, it seems inappropriate to handcuff an
accused prior to, and after trial proceedings.
: Nevertheless, in cases where the accused is thought to be violent or has committed a violent
offence or has made attempts to escape, the use of handcuffs is then deemed necessary.

3
an unofficial court held by a group of people in order to try someone regarded, especially without good evidence, as
guilty of a crime or misdemeanour.
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 However, the Public Prosecutor ought then apply for a permission of the court for the accused to
be handcuffed.

[Ramanathan s/o Chelliah v PP] [1996] 2 MLJ 538 ***

Facts : The accused is a coach, he was charged with two counts of outraging the modesty of
two athletes under section 354 Penal Code. He was brought to court in handcuffs from
the police station and was put in the dock for the charges to be read to him. The defence
counsel applied to the SCJ to have the handcuffs removed. The DPP opposed the
application. 4

Held :There was a circular by the Chief Justice that it is normal to remove handcuffs when in
dock.
: There were credible evidence to support the application to remove those handcuffs
: There was no justification to handcuff the accused.

● Principles:
○ The discretion to have accused handcuffed lies solely on the presiding officer.
○ Such discretion to handcuff the accused must be exercised judicially.5
○ There must be an application from the prosecution to handcuff the accused person and
such an application must be supported with credible evidence.

3. THE CHARGE
This part will discuss the issues pertaining charge pursuant to S173(a) CPC.

3.1. Contents of the charge

● Contents of a charge is the offence with which accused is charged which include the law & section
under which offence is said to have been committed as well as particulars as to time, place & date
of the offence.
● When time and place are not mentioned in the charge, the defence of alibi will not be available and
can never be used.
● In certain offences, time is of the essence. Eg: rape cases.
● For more info, refer to charge topic in CPC 1

3.2) Framing of the charge: The court must ensure that the charge is properly framed
● One of the preliminary objections is a defective charge. A poorly framed charge can impede the
court proceedings.

The judge subsequently rejected the application to have the handcuffs removed. The defence counsel sought a revision in
the High Court contending that it was improper for the accused to remain handcuffed in the dock on the grounds that:
- An accused person is in the custody of the court and no longer that of the police once he is put in the dock;
- There were no grounds whatsoever upon which the court could exercise its discretion to order the appellant to be
handcuffed.
The High Court rejected the defence counsel's arguments. The accused then appealed to Court of Appeal.
5
Which the subordinate court judge did not do so.
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 [P v Margarita B Cruz] [1988] 1 MLJ 5396
Held : If the charge is defective, it may be amended at any time before the trial commences.
The court should point out the defects and request the prosecution to amend the charge as
the accused should truly understand the nature of the charge he is asked to plead to.

[Rogayah bte Che Mat v PP] [2001] 5 MLJ 77

Facts : The accused, a former member of the State Legislative Assembly, was convicted after trial
and was legally represented. However, the charge was poorly framed.
Held : However, it is not fatal because the accused was legally represented.

PP v Lee Pak [1937] MLJ 265;

PP v Yap Kok Meng [1974] 1 MLJ 108;
PP v Mohamed Fathi bin Ahmad [1979] 2 MLJ 75.
Hee Nyuk Fook v PP [1988] 2 MLJ 360 SC

3.3. The charge must be "read and explained" to the accused

● After the charge has been read to the accused, the accused will be asked to plead, either guilty or
otherwise. This is provided by S173(a) CPC itself by the words “…read and explained to him…”.
● Hence, it is an extremely important procedure to ensure that the accused understand the charge.
● Failure to read and explain the charge may be fatal to a conviction on a guilty plea as the accused
may not have understood what he or she had pleaded to, and the plea of guilty can be challenged.

Possible situations:
1. When accused is unrepresented by counsel, the duty to ensure he really understand is even more
incumbent upon the Magistrate. This is because the accused person is most likely to have no
legal knowledge.
2. When the charge contains more than one ingredient, each and every ingredient must be
explained to him. This is important because of the complexity of the charge.

● There are 2 possibilities of failure to read and explain a charge:

a) Fatal:
[Re Mohd Miskin s/o Kader Bacha]7& [Subramaniam v PP]8
Held : Failure to read and explain the charge is fatal to a conviction on the guilty plea.
Reason: the accused may not have understood what he or she had pleaded to.

b) Not fatal
[Rogayah Che Mat v PP] [2001] 5 MLJ 77 – High Court
Held : The failure to explain the charge is not fatal. There is no hard and fast rule that a cahrge
must be explained to the accused merely because s 173(a) CPC says the charge “shall” be
read to the accused.

6
Facts : A passport case. The charge was poorly drafted and incomplete.
7
(1939) MLJ 289
8
[1976] 1 MLJ 76
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 Reason: In this case, the accused was legally represented and had only been convicted after trial.
So, the counsel could immediately rectify any misunderstanding or lack of
comprehension when necessary. Besides, the accused was a former member of the State
Legislative Assembly, a former lawmaker, and thus no ordinary citizen. So, the omission
to explain the charge was a curable mistake.

3.3.1) Language used when explaining the charge: When accused does not understand language
used
● In practice, all criminal proceedings in the Magistrate's Court and the Sessions Court are conducted
in Bahasa Malaysia.
● When accused does not understand the language used, efforts must be taken to read him the charge
in the language he fully understands.
● This will even include providing an interpreter in the event the language or dialect used by the
accused is not understood by the Magistrate
● It is to ensure that the accused fully understands the nature of the charge against him.

[Nalliah v R] [1948] 14 MLJ 185

Facts : The accused is only conversant in Tamil. During trial, there was no Tamil interpreter
available. The evidence was translated into Malay to him. The accused also gave his
evidence in Malay.
Held : The procedure was wrong because the accused has a right to a proper interpreter. A new
trial was ordered.

[Fong Hong Sium v PP] (1950) MLJ 293

Facts : The accused was Hainanese but the interpreter was interpreting the language in
Hokkien. The interpreter was the chief clerk of the High Court who assisted the Sessions
Court as interpreter. The interpreter did not swear in as interpreter.
Held : There is no exception to the general rule that an accused is entitled to have proceedings
interpreted to him in any language which he desires to use. An accused cannot be
obligated to use even the language which he is native to if he does not want to.
: It is the duty of the court to get the necessary interpreter. The Court must be satisfied
that the interpreter is competent to do his work efficiently.
- It is a general rule of practice that, unless the interpreter is officially qualified in the
language, the Court should ascertain that he can understand, and be understood by
the accused with sufficient ease to enable the proceedings to be properly conducted.
The most convenient method is to allow him to talk for a few moments with the
accused and to enquire whether they can so understand one another. When the Court
is satisfied with this, it should be incorporated in the record before the evidence is
recorded.

[Huang Chin Shiu v PP] [1952] MLJ 7

Facts : The accused was a Khengchew whilst the interpreter was a Hokkien. The charge was
read to the accused and he pleaded guilty.

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 : The accused can only understand very little of the Hokkien dialect. He told the
interpreter that he could only understand very little of the Hokkien language but the
interpreter said that he could not speak the Khengchew language and hence the
conversation was done in the Hokkien language.
: The interpreter however contended that the accused could answer when he spoke to him
in Hokkien and that it wasn’t a practice in Lower Court to ask an accused person in what
language he wishes to speak.

Held : It is the duty of the interpreter to make sure that he and the accused understand one
another. The interpreter has to inform the court if there is any difference of language
between them which might cause difficulty. The magistrates has the duty to ensure, as a
matter of routine, that this is always done.
: So, the plea of guilty could not stand . To have a valid plea of guilty, it is essential that
the accused should fully understand what he is pleading to; and it is impossible to be sure
that he understood, unless the charge has been explained to him in a language with which
he is entirely conversant.
: Legal phraseology is apt to be confusing to a layman, even in his own native language,
and nobody can be expected to understand all the implications of a criminal charge, if it
is read out to him in what is to him a foreign language.

[Ah Poon v PP] [2006] 5 CLJ 521

Facts : The Magistrate directed a policeman who was not a certified interpreter to interpret the
charge to the accused of Thai origin. One of the reasons is that it is difficult to obtain a
qualified Thai interpreter. The case then appealed to the High Court.
Held : It was an irregular and improper exercise for the Magistrate to direct so, and such practice
was unsatisfactory and could not be condoned.
: In cases where a police officer was called or invited to act as an interpreter, Magistrates
must satisfy themselves that:
1. the police officer was conversant.
2. The police officer is familiar with the material facts of the case or had taken a role in
any manner of the investigation before he was ordered to take the oath of an
interpreter.
: Administrative inconvenience or difficulties to obtain the services of a qualified and Thai
interpreter should not be a ground to disregard the requirement of justice to provide the
accused person with a qualified and certified interpreter of a dialect which he or she would be
able to communicate with the accused before recording the plea of the accused.

Fidelis Daniel Enechukwu v Public Prosecutor [2016] 2 MLJ 760

3.4. When there are multiple charges & accused

a) When there are multiple charges

● When there are multiple charges, the accused should plead to each charge separately.

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 ● The plea for each charge should also be done separately

[R v Boyle ] [1954] 2 All ER 7219

Held : each count in an indictment (charge) where there is more than one count should be put to
the prisoner separately and he should be asked to plead to each separate count.
: Every count in an indictment is equivalent to a separate indictment.

b) When there are multiple accused persons

● When there are multiple accused persons, the court must read and explain the charge to the
accused persons separately
● All accused persons must plead separately.
[Fong Siew Poh v PP] [1933] 1 MC 15510
Held :In a case where there are multiple accused persons, the charge must be read and explained
separately the pleas must be taken separately.
: A conviction based on a joint plea of guilty by 2 or more accused person is bad and
irregular.

Lo Seng v PP [1942] 4 MC 155

[Maung Min Aung v PP] [2001] 5 CLJ 160***

Facts :The accused (appellants) were jointly charged under the Immigration Act 1959 and the
Passports Act 1966 and convicted upon their plea of guilty. There was no indication
from the Magistrate's notes of evidence to the effect that the charges against the
appellants were read to them separately. The notes of evidence merely indicated that
the plea was a joint plea of guilt.
Issue : Whether the convictions were properly recorded
Held : A plea of guilty to an unknown offence in law is no plea at all. The appellants had not
pleaded guilty in accordance with the law and such irregularity is not curable under
section 422 of the CPC. Hence, convictions and sentences were set aside.

9
Mahmood Ali v PP [1964] MLJ 57
Held: Followed and adopted R v Boyle
10
[Subramaniam v PP] [1976] 1 MLJ 76
Facts : The accused persons were charged under sections 392 and 397 read together with section 34 of the
Penal Code. The charge was not read and explained to the accused separately. Both accused persons
were sentenced to four years imprisonment and whipping.
Held : The charges must be read and explained separately and the pleas must be recorded separately. These
convictions were irregularities which could not be cured under section 422 CPC.
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 Chapter 1, Part 2: PLEA OF GUILTY (173(b) CPC)

1. GOVERNING SECTION: 173(b) CPC

S173(b) provides for situation when the accused pleads guilty.

Section 173(b)
If the accused pleads guilty to the charge, whether as originally framed or as amended, the plea shall be
recorded and he may be convicted on it and the Court shall pass sentence according to law:

Provided that before a plea of guilty is recorded, the Court shall ascertain that the accused understands the
nature and consequences of his plea and intends to admit, without qualification, the offence alleged against
him.

1.1) WHAT IS A PLEA

● "Plea" = Accused's answer to the charge against him.
● After the charge has been read over and explained to the accused, he should be asked
○ "how do you plead, guilty or not guilty?"
● "Charge, whether as originally framed or as amended"
○ Refers to situations whereby the earlier charge has been amended due to being defective/lacking
in particulars. In such a case the PP may have it amended before a plea is taken.
○ This means that the court may amend any charge and the amended charge must be read and
explained to the accused.
○ Refer sections 15811 and 15912

2. PRELIMINARY OBJECTIONS
2.1. When to make preliminary objections
● Defence may raise preliminary objections after the charge is read and explained
● However, it must be done before a plea is taken.
● If such objection is upheld, then it will render further proceedings before the court impossible or
unnecessary.

2.2. Grounds for objections

1. Section 122 - Court is incompetent
2. Section 128 - 132 - No sanction/consent of PP or court obtained
3. Section 153 - No particulars of charge
4. Section 177 - Application for transfer
5. Section 259 - Postponement of case
6. Section 302 - Previous acquittals/convictions
7. Section 342 - 344 - Accused is Unfit to plead [focus]
8. Section 439 - Possibility of Magistrate being biased [focus]

2.3. Ground 7: When the accused is unfit to plead (Section 342 – 344)
11
Court may alter or add to charge
12
When trial may proceed immediately after alteration or addition
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● Where the accused person is insane, the court must not accept the plea of guilty

● Section 342: Procedure where accused is suspected to be of unsound mind

(1) When a Judge or a Magistrate has reason to suspect that the accused person is of unsound
mind and consequently incapable of making his defence, he shall in the first instance investigate
the fact of such unsoundness.
(2) At the investigation, it shall not be necessary for the accused person to be present and the
Judge or Magistrate may receive as evidence a certificate in writing signed by a Medical
Officer to the effect that the accused person is of unsound mind or is a proper person to be
detained for observation in a psychiatric hospital, or the Judge or Magistrate may, if he sees
fit take oral evidence from a Medical Officer on the state of mind of the accused person.
(3) If not satisfied that the person is capable of making his defence, the Judge or Magistrate shall
postpone the trial and shall remand that person for a period not exceeding 1 month to be
detained for observation in any psychiatric hospital in Malaysia.
(4) The Medical Director of the said psychiatric hospital shall keep that person under observation
during the period of his remand and before the expiry of that period shall certify under his hand
to the Court his opinion as to the state of mind of that person, and if he is unable within the
period to form any definite conclusion, shall so certify to the Court and shall ask for a further
remand. Such further remand may extend to a period of 2 months.
(5) The Public Prosecutor may at any stage of any proceedings prior to the trial order that any
accused person whom he suspects to be of unsound mind be sent to a psychiatric hospital for
observation for a period not exceeding 1 month. The Medical Director of that psychiatric
hospital shall keep that person under observation during the said period and before the expiry
of the said period shall certify under his hand to the Public Prosecutor his opinion as to the
state of mind of that person. If the said Medical Director is unable within the said period to
form any definite conclusion he shall so certify to the Public Prosecutor, and the Public
Prosecutor may order that person to be detained in that psychiatric hospital for a further
period not exceeding 2 months. The Medical Director of a psychiatric hospital may,
notwithstanding anything in the *Mental Health Act 2001 contained, detain any accused person
in respect of whom an order has been made under this subsection for a period not exceeding the
period specified in the order.

● Section 343: Certificate of Medical Director

(1) If the Medical Director shall certify that the accused person is of sound mind and capable of
making his defence the Judge or Magistrate shall proceed with the trial.
(2) If the Medical Director shall certify that that person is of unsound mind and incapable of
making his defence, the Court shall, if satisfied of the fact, find accordingly, and thereupon the
trial shall be postponed.
(3) The certificate of the Medical Director shall be receivable as evidence under this section.
(4) If the accused person is certified to be of unsound mind and incapable of making his defence, it
shall not be necessary for him to be present in Court during proceedings under this section.

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● Section 344: Release of person of unsound mind pending investigation or trial
(1) Whenever an accused person is of unsound mind and incapable of making his defence, the
Judge or Magistrate, if the offence charged is bailable, may, in his discretion, release him on
sufficient security being given that he shall be properly taken care of and shall be prevented
from doing injury to himself or to any other person, and for his appearance when required
before the Judge or Magistrate or such officer as the Judge or Magistrate appoints in that
behalf.
(2) If the offence charged is not bailable or if sufficient security is not given, the Judge or
Magistrate shall report the case to the Yang di-Pertuan Agong in respect of the Federal
Territory, the Ruler or the Yang di-Pertua Negeri of the State, as the case may be, in respect of
a State in which the trial is held and *the Ruler may, in his discretion, order the accused to be
confined in a psychiatric hospital, and the Judge or Magistrate shall give effect to such order.
(3) Pending the order of the Ruler, the accused may be committed to a psychiatric hospital for safe
custody.

● Generally, if a person is of unsound mind when committing the crime, he cannot be cannot be
convicted nor his plead of guilty be accepted.
PP v Dat a/k Tuni [1991] 1 MLJ 208
PP v Misbah bin Saat [1997] 3 MLJ 495

[PP v Nageswari] [1994] 3 MLJ 463

Facts : The accused was charged under section 420 of the PC. The accused pleaded guilty to the
charge after it was read and explained to her. At the plea of mitigation, the main issue was
insanity. Due to this, the Magistrate bound over the accused in the sum of RM1500 for a
period of 2 years pursuant to section 294 CPC.

DPP applied for a revision on the magistrate's decision on the ground that the accused had a
relapse of schizophrenia at the time of committing the offence, and considering the mental
state of the accused, the Magistrate should not have accepted the plea of guilty.

Held : Under section 347 CPC, the Magistrate's judgement should be one of acquittal on the
ground of mental disorder. Further, the Magistrate must make a finding as to whether the
accused committed the act or not. However, the order of acquittal under section 347 should
only be made after a full trial.

[PP v Ismail bin Ibrahim] [1998] 3 MLJ 243

Facts : The accused was charged under section 392 of the Penal Code. Subsequently, it was found
that that the accused was actually schizophrenic. However, the PP then proceeded with the
charge. and the charge was read and explained to the accused. The accused pleaded guilty to
the charge.

In his plea of mitigation, the defence counsel submitted that the accused was mentally ill.
The Magistrate then sentenced the accused to a day's imprisonment and a fine of RM1500 in

13 | Page
 default of 2 months imprisonment. DPP requested for the Magistrate's decision to be
reviewed.

Held : The Magistrate ought to have rejected the plea of guilty of the accused and entered a plea
of not guilty instead. For 2 reasons:
1. if the accused was of unsound mind at the time of committing the alleged offence, then
he cannot be found guilty in any offence, and any conviction recorded against him
would be wrong in law.
2. The sentence imposed on him would also be wrong in law as he would not be liable to
any punishment.

2.4. Ground 8: Possibility of the Magistrate being biased

Section 439: Magistrate not to act where interested
No Magistrate shall try any case to or in which he is a party or personally interested, except with the
permission of the High Court to which an appeal lies from his Court

About Section 439

○ This section is not concerned with whether he was actually biased or otherwise.
○ The court does not look at the mind of the judge himself but rather the impression the situation
would give to other people (general public).
○ Apparent bias would suffice & not actual bias.
Dr. Jaanah:
- It is based on public perception. As long as the public views it as bias, then there is bias.
- It is irrelevant whether in actuality, there is or is no bias.
- "Justice should not only be done but should appear manifestly to be done."

[Mohamed Ghazali bin Ibrahim v PP] [1995] 2 AMR 1446, [1995] MLJU 138
Facts :The accused was charged before the Magistrate’s Court for 2 traffic offences under the Road
Transport Act 1987. The accused pleaded guilty. It was found that the presiding Magistrate,
was actually the accused person's brother. The Magistrate admonished (173A) & discharged
the accused. Subsequently, members of the public lodged a complaint to the HC & the judge
called for records of the case for revision
Issue :Whether the presiding Magistrate had been unfairly lenient in dealing with case involving
his brother?

Held : The Magistrate, in his letter to the HC explained that his order to admonish & discharge
was based purely on the merits of the case & that he had acted impartially. However, the
explanation was not accepted by the HC.

Principle : Any interest or probability of bias (apparent bias) is sufficient to disqualify a judge
acting in judicial inquiry

[PP v Lau Tuck Weng] [1988] 3 MLJ 217

14 | Page
 In this case, KC Vohrah J decided to recuse himself where the defence was likely to call a witness
whom he had tried previously and had made adverse comments on his credibility although
acquitting him eventually.

3. DISCRETION OF THE COURT TO ACCEPT PLEA

● Before a court records a plea of guilty in reply to the common form question asking the accused to plead,
it is necessary for the court as a matter of discretion to consider whether it was safe to accept the plea.
● This is a procedure to be conducted with great caution.
○ The accused must answer himself, even if using an interpreter (discussed below)
○ This is to ensure that his plea was made unconditionally and unequivocally to every aspect of the
charge. (discussed below)
Cheng Chong v PP [1967] 2 MLJ 130
Held : The provisions of section 173(b) CPC seem to establish the salutary rule that before a court
records a plea of guilty in reply to the common form question asking the accused to plead, it is
necessary for the court as a matter of discretion to consider whether it is safe to consider the plea.

Heng Kim Khoon v PP [1972] 1 MLJ 30

Held : The taking down of a plea of guilty is a solemn & serious act and Magistrate should devote
some time & active thought before they decide to accept the Plea of Guilty & convict.
: As a matter of practice, the record of proceedings should make it clear that the charge has been
read, explained & understood.

Sukma Darmawan Sasmitaat Madja v PP [2007] 4 CLJ 697**

Facts : The accused made a plea of guilty but it was done involuntary due to being induced by
illegitimate pressure such as oppression/coercion. It was also found that there was a suppression
of material evidence by prosecution.
Held : It is necessary for the court to consider whether it is safe to accept the plea. Since there was a
suppression of material evidence favourable to the defence by the prosecution, it might render
the conviction of the accused based on his plea of guilty being quashed.
: when there is such circumstances (suppression or withhold of evidence), 13
- the duty of the prosecution counsel is; if he knows of a credible witness who can speak to
material facts which tend to show the prisoner to be innocent, he must either:
1. call that witness himself; or
2. make the witness' statement available to the defence.
- It would be highly reprehensible to conceal the evidence from the court which such
witness can give.

4. ELEMENTS OF A VALID PLEA OF GUILTY

● To make a valid plea of guilty, there are 4 elements which are derived from S137(b) as well as the case of
Lee Weng Tuck:
1. The plea must be recorded;
2. The accused must understand the nature and consequences of his plea;

13
Referred to Dallison v Caffrey
15 | Page
 3. The accused must intend to admit without qualification of the offence alleged; and
4. The accused himself must be the one who wishes to plead.
● If a charge is amended (for any reasons, defective etc), all these elements have to be fulfilled every time
the charge is amended to safeguard a valid plea of guilty. (charge has to be amended before a plea is
taken).
● If the accused refuses to plead or keeps silent, then the court shall start with the trial.

a) 3 Elements Under Section 137(b) 14

1. The plea must be recorded
2. The accused understands the nature and consequences of the plea.
3. The accused intends to admit of the offence alleged, without qualification.

b) 3 Safeguards to determine validity of PG as per the case of Lee Weng Tuck

Lee Weng Tuck v PP [1989] 2 MLJ 143
Facts : This is a drug trafficking case. All the accused are jointly charged. One pleaded guilty
but the rest did not.
Held : The court laid down the 3 safeguards to be followed to determine the validity of PG:
1. Court must ensure it is the accused himself who wishes to plead;
2. Court must ascertain the accused understands the nature & consequences of his
plea, which includes being sentenced to the maximum punishment even though it is
not mandatory; and
3. Court must ascertain that the accused intends to admit without qualification the
offence alleged against him

4.1) ELEMENT 1: THE PLEA MUST BE RECORDED

● In exercising his duty, the trial judge must expressly state in his notes of proceeding whether the
court accepts or rejects the plea of guilt.

PP v Ismail bin Ibrahim [1998] 3 MLJ 243

Facts : The record does not indicate that the plea has been accepted by the court.
Held : It is a mandatory requirement to record a plea of guilty and the record must show that
this has been complied with. The defect goes to the very foundation of as it indicates that
the magistrate did not consider whether an offence has been disclosed by the facts before
proceeding to impose sentence.

cf Maung Min Aung v PP [2001] 5 CLJ 160***

Held : A plea of guilty does not of its own force constitute a conviction, but it is the further act of
the court that will result in one.
: The court recognised 2 types of "conviction"

14
If the accused pleads guilty to the charge, the plea shall be recorded and he may be convicted on it. Provided that
before a plea of guilty is recorded, the Court shall ascertain that the accused understands the nature and consequences
of his plea and intends to admit, without qualification, the offence alleged against him.

16 | Page
 1. A conviction in the narrower sense does not occur until there is an acceptance of the
plea of guilty which will amount to a determination of guilt by the court.
2. A conviction in the wider sense however refers to the final disposal of the case and
occurs after the plea of mitigation has been made and will accordingly be re-recorded
just before sentence is passed.
: The proper sense in which the word "conviction" must be construed in a particular case is
dependent on the statutory context in which it is used. Where there is nothing in the context
is to suggest a narrower sense in which it is used the word conviction must then be
interpreted to refer to its wider meaning.
: Any error in the recording of a conviction is an irregularity which is curable unless the
premature recording precludes the imposition of a sentence without recording a conviction.

4.2) ELEMENT 2: ACCUSED UNDERSTANDS THE NATURE AND CONSEQUENCES OF THE

PLEA

4.2.1) Understanding Nature of the plea of guilty and the charge

● Accused needs to understand that he is admitting fault/guilt of the offence alleged against him.
○ Accused must also understand the charge made against him.
○ Lim Yoo Hock v PP [1984] 1 MLJ 309
Fact : In this case the respondent had been convicted on a charge alleging that he was found in
possession of video-tapes. The respondent was fined $2,000 or in default 4 months'
imprisonment. The Public Prosecutor appealed against the sentence.
Held : The charge was defective as possession of the offending tapes per se did not constitute
an offence within the meaning of s 15(1) of the Films (Censorship) Act. When the
respondent said in mitigation that the tapes were not meant for hire, the respondent
was in fact making a qualified plea which ought to have led the magistrate to reject
the plea of guilty and enter instead a plea of ‘Not guilty’. The conviction should
therefore be quashed and a retrial be ordered.

○ Yusuf bin Busrah v Public Prosecutor [2006] MLJU 163

■ Keris case

4.2.2) Understanding the consequences of PG

● The accused must understand that upon plea of guilty, he:
1. cannot put forward a defence and there will be no trial;
2. shall be punished according to statutory provisions & judicial principle and the accused must
understand the full extent of the punishment of the offence.
3. will not be allowed to APPEAL against his conviction under section 305 CPC
- the accused may however appeal against the sentence, but not conviction unless if the plea is
not a good plea (not fulfilling all elements)

17 | Page
 [Lee Weng Tuck v PP] [1989] 2 MLJ 143
Held : The court must take the trouble to ascertain that the accused understands what he is
pleading guilty to.
: When an accused pleads guilty, there must be some indication on record to show that he
actually knows NOT only the nature of the PG to the charge but also the consequences
of his plea which including that there will be no trial and the maximum sentence may
be imposed on him even though such sentence is not mandatory.

[Petrus a/l Belaka] [1998] 3 MLJ 894

Facts : the accused was charged under section 33 of the Commercial Vehicle Licensing Board
Act 1987. The accused pleaded guilty The accused was then fined and his van was
forfeited under section 51 of the same act. When his van was forfeited, the accused
withdrew his plea. It is because he did not know that forfeiture of his van is one of the
consequences of the plea.
Held: The plea of guilty is defective.

[Gabriel v PP] [1992] 1 MLJ 593

Facts : The accused was charged under section 380 PC for theft.The accused pleaded guilty to
the charge. However, upon conviction, the accused appealed against the conviction.
Held : The court struck off the accused's appeal as he had pleaded guilty and understood the
nature and consequences of his guilty plea.

Sia Yik Hung [1998] 1 MLJ 450

4.3) ELEMENT 3: ACCUSED INTENDS TO ADMIT OF THE OFFENCE ALLEGED WITHOUT

QUALIFICATION

4.3.1) Meaning of "unqualified"

1. Unconditional
2. Unreserved
3. Unequivocal (unambiguous)

4.3.2) PG must be completely unreserved, unqualified, and unequivocal

● Understanding the nature of the plea is insufficient!
● Plea of guilty must be completely unreserved, unqualified and unequivocal, this includes that the
accused must understand every element of the offence.

Heng Kim Khoon v PP [1972] 1 MLJ 30***

Facts : Charges were read over, explained & understood by the accused. The accused pleaded
guilty. The accused admitted the facts but in mitigation stated that the exhibits were not his
& that they have been left behind by a friend. Trial court found him guilty & convicted
him on 2 charges. The case then went on for a revision
Held : A plea of guilty may be accepted by the court & the accused convicted on it but the court is
not bound to accept a plea of guilty in all cases.
18 | Page
 : The accused is not to be taken at his word when he pleads guilty UNLESS the plea is
expressed in unmistakable terms with full appreciation of the essential ingredients of
the offence.
: This rule of law is applied with even more stringency when the offence charged is
complicated or serious…
: A plea of guilty only amounts to an admission that the accused committed the acts alleged
against him and NOT an admission of guilt under a particular section of the Act. If he pleads
guilty under an erroneous view of the law his conviction cannot stand.
: In such a case the PG does not avail because he cannot be said to have committed the
offence in question in the eyes of the law.”

Cheah Chooi Chuan v PP [1972] 1 MLJ 215***

Facts : The accused said that he would plead guilty if the complainant slaughtered a cockerel at
a temple. The complainant then accepted the challenge and slaughtered the cockerel. The
accused then pleaded guilty
Held : In rejecting the guilty plea, held: “it is a cardinal principle that any plea of guilty must
be completely unreserved, unqualified, and unequivocal"

Munandu Segaranv PP [1984] 2 MLJ 82 ***

Facts : The accused was drunk when he pleaded guilty to the theft of a bicycle. He thought the
bicycle was his as he was drunk, so he unintentionally took the bicycle.
Held : the guilty plea was not unequivocal because he was drunk.

Lo Kim Peng [1979] 1 MLJ 249

Held : where the charge contains one or more ingredients or questions, and where the accused
is not represented by counsel, it is desirable that each ingredient and each question
involved should be explained by the Magistrate himself through the interpreter to the
accused, and the accused's reply should be recorded.
: If, after recording them the Magistrate is in any doubt whether the plea is an
unequivocal plea of guilty, a plea of not guilty should be entered and evidence should be
called.

[Lim Yoo Hock v PP]15 & [Deonny Ak Ugoh]16

Held : A judge should reject a plea of guilty where the plea did not constitute an unequivocal
plea of guilty.

Example cases
Sukma Darmawan Sasmitaat Madja v Pendakwa Raya [2007] 4 CLJ 697
Fact : The accused was tortured by the police to make confession that he sodomised the
victim. Then, the prosecutor also suppressed a physical examination report testifying that

15
[1984]1 MLJ 309
16
[1999] 1 MLJ 469
19 | Page
 there was no penetration done to the victim. The accused was forced to plead guilty in the
court.
Held : The accused pleaded guilty under coercion, and some material evidence was suppressed
by the prosecution. Hence, the plea was no valid.

Petrus a/k Belaka v PP [1998] 3 MLJ 894

Fact : The accused was charged under s 33 Commercial Vehicle Licensing Board Act. He
plead guilty and he got fined as well as his van forfeited. However, the accused was not
told of the consequence of his vehicle being forfeited if he pleaded guilty.
Held : The plea of guilty is invalid as the consequences of the plea of guilty which would
result in the van being forfeited was not explained to him.

Yusuf bin Busrah v Public Prosecutor [2006] MLJU 163

Facts :The accused pleaded guilty to the charge for possession of a keris. The accused informed
the Magistrate that keris was borrowed from him by a friend for a wedding. He said the
keris was returned to him by a friend after the wedding, and as he was taking the keris
back to his home, he was stopped by the police.
Held : the accused made a qualified plea of guilty and the magistrate should have rejected it.

PP v Margarita de Cruz [1988] 1 MLJ 539

Facts :The accused pleaded guilty to possession of 2 passports without lawful authority and
said that her friends asked her to keep them for safety. However, the accused stated that
she had lawful authority to keep those passports.
Held : In a trial, the court should scrutinize the facts and see if the ingredients of the alleged
crime was made up. In this case, since the accused claimed that she had lawfully attained
the passports, the trail magistrate should have rejected her plea as it was not unequivocal.

Juffrey bin Hashim v PP [1986] 2 MLJ 239

Facts : the accused pleaded guilty to 3 different charges. However, for the 3rd charge, the
accused said that he did not understand the full charge nor was it explained to him.
Held : The accused’s plead of guilty should be rejected (though still guilty for the 1 st and 2nd
charges) as the charge was not explained to him, including adequately explain the
possible defences.

4.4. ELEMENT 4: THE ACCUSED HIMSELF IS THE ONE WHO WISHES TO PLEAD GUILTY
There are 3 modes of plea of guilty. It can be done:
1. by the accused himself (the best mode);
2. by letter (subject to conditions in section 137(2) CPC); or
3. through counsel on behalf of the accused (highly undesirable).

a) Mode 1: Plea of guilty by the accused himself

● It is settled that it is the best practice for the accused himself to plead guilty

20 | Page
 R v Tan Thian Chai (1932) MLJ 7417
Held : An accused person must plead guilty or claim trial by his own mouth and not through his
counsel or advocate.

● Hence, as long as it is the accused himself who plead guilty, it is sufficient (if he fully understand the
nature and consequences of the plea). If the nature and consequences of the plea is explained to accused
by the court and he understands it, the presence of his counsel is immaterial as the job of a defence
counsel if only to explain the nature and consequences of the plea.

Abdul Kadir bin Abdul Rahman v PP [1984] 1 MLJ 80***

Facts : The appellant, a public servant and Postmaster of the Post Office at Skudai, Johore was charged
with criminal breach of trust of $200.00 cash belonging to the Government of Malaysia.The
accused pleaded guilty at first, but subsequently withdrew his guilty plea.
Held : An accused person should plead guilty or claim trial by his own mouth and not through his
counsel or advocate (the court followed Tan Thian Chai, though took due note of rule 16 of the
Legal Profession (Practice and Etiquette) Rules 1978)
: The responsibility of pleading guilty or not guilty is that of the defendant himself, but it is the
duty of defending counsel to assist the defendant to make up his mind by putting forward the
pros and cons of a plea, if need be in forceful language, so as to impress on the defendant what
the result of a particular course of conduct is likely to be. (referred to Archbold Criminal
Pleading Evidence and Practice)

PP v Leng Chow Teng [1985] 1 MLJ 229 FC

17
Cf Chin Ban Keat v R [1949] MLJ 297
Facts: The accused was charged for accepting an illegal gratification, an offence under s. 161 of the Penal Code. At the trial, the
accused pleaded guilty through his Counsel. After a statement of facts had been given, the accused was convicted. There
was an appeal against the conviction of the accused.
Held : The court dismissed the appeal and accepted the guilty plea.
■ Acknowledged the position in R v Tan Thian Chai
■ However, the judge went on to say "I am asked to hold that an accused must always plead by his own mouth,
but I can find nothing to support this contention. Section 182 of the CPC does not specifically provide for the
plea to be made by an accused."
■ The court will legally accept the plea made by a counsel on behalf of his client as long as these requirements
are fulfilled:
- The accused understands the nature and consequences of the of the plea
- The counsel has obtained authority from his client.
■ Despite that, (to save his ass from criticisms?) the court clarified that even though such practice is allowed, it
is highly undesirable.
- "It is clear that the practice of accepting Counsel's plea on behalf of his client is highly undesirable and
should be avoided. The only satisfactory way of ascertaining what is in accused's mind is to make him
plead himself and record his words. That is the best practice and precludes all questions of whether the
plea was authorised or not."
■ But this position was changed in subsequent cases such as Abdul Kadir in 1984 and Leng Chow Teng in
1985.

21 | Page
 Facts : The accused was charged in the Magistrate's Court on two charges for possession of opium and
possession of utensils for smoking opium. The trial was brought forward from the scheduled date
without notifying the counsel. The accused then pleaded guilty in the absence of his counsel. The
accused was subsequently sentenced.
Issue : Whether a plea of guilty is good in law when made by the accused in person, but without notice
to and in the absence of his counsel after the charge has been read and explained to him and he
understood the nature and consequences of his plea.
Held : Any plea must in all cases be made by the accused personally irrespective of whether he is
unrepresented or represented by councel (ref. Tan Thian Chai). It is insufficient for counsel to
say that the accused wishes to claim trial or plead guilty.
: The accused must himself plead (ref. R v Hayes) except if the charge is preferred under statute
(eg: by letter)
■ The plea of guilty in such a case is good in law but such a plea should only be recorded
but not accepted unless the court is satisfied that the absence of the defence counsel has
been properly accounted for. The acceptance of such a plea in the absence of counsel is
bad in law as without counsel's advice the accused could not be said to have understood
the nature and consequences of the plea or to have intended to admit without qualification
the offences alleged against him.
■ This requirement for the accused himself to make a plea and not merely through his
counsel is implicit in s.173(a) & (b)

● When the accused is a company

○ A company registered under the Companies Act has a legal personality, hence a company can be
prosecuted for criminal offences.
○ However, CPC is silent on how a plea of guilty made by a company is to be taken.
Justin Milroy Narakera v PP [1990] 2 CLJ (Rep) 181
Held : Relying on Section 33 of the English Criminal Justice Act 1925, the court held that a
plea of guilty or not guilty can be taken from a representative of the company.

Mohd Dalhar b Redzwan v Datuk Bandar; DBKL [1995] 2 CLJ 209

Held : A plea of guilty or not guilty can be taken from the representative of the company.
Added condition: it must be duly authorised by a statement in writing to do so by the
Managing Director or by the person having the management of the affairs of the
company.

b) Mode 2: Plea of guilty by letter

● Section 137(2)
In any case relating to an offence punishable by fine only or by imprisonment only of a term not
exceeding 3 months or by both … an accused desiring to plead guilty and be convicted & sentenced in
his absence may appear by advocate, or may by letter addressed to the Magistrate plead guilty and
submit to pay any fine which may be imposed in respect of that offence and the Magistrate may
thereupon record a plea of guilty and convict him according to law, and may sentence him to a fine with
or without a sentence of imprisonment in default of payment of the fine.

22 | Page
 ● From section 137(2), a plea of guilty by letter is only applicable for offences punishable by:
1. fine only; or
2. imprisonment of not more than 3 months, or
3. Both
Chow Sai Let v PP [1960] MLJ 246
Held : A person accused of an offence under the Road Traffic Ordinance may plead guilty by
post (letter) even though the offence has not been prescribed under section 147 of the
Road Traffic Ordinance as the punishment for the offence is one of fine only or of
imprisonment not exceeding 3 months.

For other offences that involves disqualification of driving licence, the plea cannot be
done by letter as the offence is not “punishable by fine or by imprisonment not exceeding
three months ONLY”, it is also punishable by other punishment, ie a period of
disqualification for holding or obtaining a driving license.

PP v Azmy Ariff [1974] 1 MLJ 108

Fact : The accused pleaded guilty to an offence which is punishable with fine or maximum 6
month imprisonment or both.
Held : Where the punishment exceeds 3 months of imprisonment, section 137(2) cannot be
used.

c) Mode 3: Plea of guilty through counsel on behalf of the accused.

● This is where the counsel for the accused plead guilty on behalf of the accused.
● See discussion on Mode 1: PG by the accused.

5. STATEMENT OF BRIEF FACTS

5.1. Introduction
● S173 (b) did not mentioned "brief facts". However, after the plea of guilty has been done, the court
must observe that the prosecution read the brief facts to the accused.
● It is a procedure carried out after the plea is made the first time, and it is usually done through a
statement of brief facts prepared by the prosecution.
● If offence is minor hence straightforward, particulars of facts are self-explanatory in the charge.
However, if the offence is complex, further facts are required (which is call the “brief facts”). This
is because usually charge contains only bare essentials/elements of charge.
● The more complex the case, the more important the statement of brief facts (This case, although
didn’t lay down any judgement pertaining brief fact, illustrates how important brief facts are.):

Low Hiong Boon v PP [1948-1949] MLJ 135

Facts : A nurse instructed a mother to medication to her infant. The nurse told the mother to
give the infant 3 drops of the medicine at certain points of time. Unfortunately, the
mother gave half a bottle instead of 3 drops, and the infant overdosed and died. The
nurse was charged for causing death by negligence under section 304A Penal Code. The
nurse pleaded guilty.

23 | Page
 The brief facts were then read by the prosecution. 18 Accused then made a few remarks in
mitigation where the case was adjourned for ‘evidence on investigation as to accused’s
medical condition & sentence.’ At the conclusion of evidence the Judge recorded a
conviction & sentenced the accused. Should the plea of guilty be accepted? (Prosecution
argued that since accused had pleaded guilty the appeal could only be against the
sentence.)

Held : Where the facts and the offence are complicated, the judge should not be hasty in
accepting a plea of guilt unless he is fully satisfied that the accused really understood the
nature and consequences of plea of guilt. The only exception is when the facts are simple
and the law applicable to those facts beyond doubt.
: In negligence cases, whether it is a criminal or civil negligence is a complex issue. In
this particular case, where the accused was a young girl & the circumstances in which the
alleged negligence took place were obscure, it was wrong to accept the plea of guilty,
hence, the case should be ordered for retrial.

5.2. The outcomes after statement of brief facts is read and explained to the accused
● If the accused disputes any one or more with the facts, then the plea of guilty IS
CONDITIONAL. The plea of guilty must hence be rejected and a retrial will be ordered. However,
he doesn’t have to admit to every statement in the brief fact. As long as he admits to the ingredients
of crime, it suffices. (ie, those facts that doesn’t affect the criminal elements doesn’t affect the
validity of his plea)

S'pore Case: Chota bin Abdul Razak v PP [1991] 3 MLJ 77

Held : An accused doesn’t have to admit every facts contained in a brief facts. As long as what
he admitted contained all the ingredients of the offence, what he disputed or did not admit
is immaterial to the offence. Such an admission is sufficient and the court should accept
the plea.

● If the accused agrees with all brief facts, then the plea can be accepted. The plea will be recorded
and the case will be disposed of.
○ Note: even if the accused admits, the court must ensure that the facts support the charge. If not,
the court will have to proceed to trial

5.4. How must brief facts be made

● PP v Soon Tiew Choon [1976] 1 MLJ 189
Held :When an accused pleads guilty to a charge, the brief facts given by the prosecuting officer must
reflect the true & essential elements in the charge. There must be evidence to prove the facts
stated by the prosecution.
: When an accused does not admit to the contents of the statement of brief facts, the court
must reject the plea of guilty and enter a plea of not guilty
18
‘Accused gave bottle to the ignorant mother of child LKF with instructions to give child a dose at 4 a.m. Dose 3 drops.
Mother gave half bottle of oil of Chinnapodium & a little later gave the other half. Child became violently ill & died. Post
mortem revealed cause of death was due to overdose.’
24 | Page
 ● Lian Khian Boon v PP [1991] 1 MLJ 51
Facts: the accused was a young offender
Held : Brief facts must be based on evidence the prosecution has in their hands. However, these facts
must be:
1. facts which the prosecution can prove
2. facts which are necessary to establish the charge

● Abd Kadir Abd Rahman v PP [1984] 1 MLJ 80

Held : The narrative by the prosecution should be a short summary of the facts of the case and its
length depends on the nature of the charge and the seriousness of the case.

● Palan v PP [1932] 1 MLJ 124

Held : It is the duty of the trial judge before passing the sentence to take evidence of the nature of the
crime charged. Some evidence ought to have been taken by the trial judge to indicate the nature
and quality of the criminal act for which the sentence is given. Without the evidence, the
appellate courts cannot say whether the sentence imposed is fair or not.

● PP v Hon Jin Bong [1999] 5 MLJ 366

Held : Where there is a statement of facts agreed to by an accused and his conviction is founded on
such a statement, the accused is only bound by what he has agreed to.

6. WITHDRAWAL OF PLEA OF GUILTY

6.1) Introduction
● There is no express provision in the CPC whether the accused is allowed to withdraw his plea of guilty.
● Generally: The accused can withdraw his plea as long as the Magistrate is no longer functus
officio
○ A trial court is vested with the discretion to allow the accused, before the sentence is passed, to
withdraw a plea of guilty and to substitute it with a plea of not guilty.
○ As with other powers, this discretion must be exercised judicially and upon justifiable
grounds/reasons.
○ An accused cannot simply be allowed to change his plea according to his whims & fancy but only
upon cogent grounds which satisfy the court that it is proper in the eyes of justice to allow it

6.2) Courts have absolute discretion to allow withdrawal of plea at any time but only before the judge
becomes a functus officio.
● Functus Officio = when the judge has exercised his authority & brought it to an end in a particular case.
● This rule was laid down by Abdul Mormin and has been developed by subsequent cases.
● In short, the principle is that when an accused wished to change/ withdraw his plea (from guilty to not
guilty), the court has absolute discretion to allow it but only before the sentence is pass (note: recording
of conviction if not enough, the sentence must be meted out). This means that once the sentence is
passed, no plea can be done but even before sentence is passed, the court can still reject the application
to withdraw a plea of guilty, though cases have held that such a discretion must be exercised judicially.

25 | Page
 Abdul Mormin v PP [1939] 1 MLJ 32319
Held :It is the discretion of the Magistrate whether he will allow the plea of guilty to be withdrawn.
That discretion must be used judicially and it is undesirable to attempt to lay down any hard and
fast rule as to how the discretion should be exercised.
: A plea of guilty can be withdrawn BEFORE the court is a functus officio. (the court did not
specify at what stage this takes place)

New Tuck Shen v PP [1982] 1 MLJ 27

Held :20 a court which has accepted a plea of guilty can still allow a plea of not guilty to be substituted
at any time before that court passes sentence.
: As for pleading guilty through plea bargaining, plea bargaining will only be a ground of appeal
if the accused can discharge the onus of satisfying the court that he was lured under a mistaken
belief of fact and law when he pleaded guilty but not due to the failure of plea bargaining with
the prosecution.

Jamalul Khair v PP [1986] 2 MLJ 371 ***

Held : The Court is not functus officio until she has passed a sentence or has otherwise finally
adjudicated the matter. (this case specify when the court became functus officio)

Lee Weng Tuck v PP [1989] 2 MLJ 143

Held : A plea of guilty can be changed at any time before sentence is passed as it is the judicial
discretion of the court. But the power to allow/disallow must be exercised judicially.

Basheer Ahmad Maula Sahul Hameed v PP [2016] 9 MLJ 549

Fact : The accused was charged under the Computer Crimes Act for using an ATM debit card
belonging to a MH370 victim to withdraw money without authorisation. The accused pleaded
guilty and the conviction was recorded but the sentence was not meted out yet. On the day of
sentencing, the accused wishes to withdraw his plea of guilty. The issue is, can the plea be
withdrawn?
Held : Since the sentence was yet to be meted out, the court wass not functus officio. Hence, he had
the discretion of allowing or dismissing the applications the accused for the change of plea of
guilt. The discretion must be exercised fairly based on the legitimate reasons.

Re VGM Holdings [1941] 3 All ER 417

7. ISSUES ON JOINT PLEA OF GUILTY

7.1. When there are many accused, one of them decides to plead guilty but the others claims to be
tried

19
Facts: The accused was charged with voluntary causing hurt to his own wife. The charge was read and
explained to the accused in both Hindustani and Malay. The accused pleaded guilty in both languages.
On the date of sentencing, the counsel for the accused applied to withdraw the plea of guilty. The
Magistrate refused to allow the withdrawal and sentenced the accused to 3 months of imprisonment.
20
following R v McNally and S (an infant) v recorder of Manchester:
26 | Page
 ● In this situation, the issue is when the sentence of the pleaded guilty accused ought to commenced?
● Hence, in such a situation, we must see if the accused who pleaded guilty is intended (by the
prosecution or defence counsel) to be the witness of the prosecution.
○ If yes :Then his case (the pleaded guilty one) ought to be disposed of immediately.(the sentence
is passed and will be executed immediately)
○ If no :His sentencing ought to be postponed until the trial against the other co-accused is
completed. (the sentence is passed but not executed)
Yap See Teck [1983] 1 MLJ 410
Fact : (not important)21
Held : Where the co-accused pleads guilty before trial, the court should enquire whether the
prosecution or the remaining co-accused wish to call him as a witness. If either the
prosecution or the defence wished to do so, the court should not postpone the sentence,
but should proceed to dispose of the case before removing him from the court. 
: But, if neither party requires him as a witness, sentence should be postponed until after
the trial against the remaining accused has been completed. 

Toh Ah Loh v R 
Fact : (not important)22
Held : If an accused does not intend to be a prosecution’s witness, his sentencing ought to be
postponed until the trial against the co-accused has been completed. If he intends to be a
witness, his case should be disposed immediately.

▪ The reason of such a rule is explained below:

Lee Weng Sang [1976] 1 MLJ 82
Facts : In this case , the 2 accused persons were charged for unlawful “joint possession” of
pistol, grenade and ammunition. 1 accused person pleaded guilty and the other claimed
trial. The trial judge convicted the one who pleaded guilty and proceeded to try the other
who claimed for trial.
Held : The trial judge made the mistake in convicting the first accused. It is not desirable to
consider a plea of guilty until after the trial. This is because an awkward situation
will arise if the other person is acquitted of the charge.

21
Fact: In this case, three persons were jointly charged for two offences of gang robbery under s 395 of the Penal
Code (Cap 45). At the commencement of the joint trial, one of the accused pleaded guilty to both charges and he
was convicted & sentenced. The other two accused were tried, and at the trial the accused who had pleaded
guilty and sentenced was called to give evidence for the prosecution. The two accused were then found guilty and
sentenced too . One of them, the appellant, appealed.
22
Fact : In this case the accused were charged with unlawful possession of ammunition. The first accused pleaded guilty
and the Judge postponed sentence until after the hearing of the case against No. 2, but he was allowed to remain in
Court. At the conclusion of the prosecution case against No. 2 accused, he elected to make a statement from the dock. In
giving his statement he was interrupted twice by the trial Judge and told, in effect, that he must not give hearsay evidence.

Defence counsel for accused No. 2 then called No. 1 accused as a witness but before this was done, the Judge passed
sentence on him. He was then examined by the trial Judge and after cross-examination by the D.P.P., Defence counsel of
accused No. 2 was asked if he wanted to ask him any question. The trial Judge then summed up to the Jury. The accused
no2 was convicted and he appealed against his conviction.
27 | Page
 : By not accepting the plea before the other co-accused is tried, it enables the prosecution
to consider amending the charge at the later stage after the facts have come out more
clearly after the trial of the other accused.

▪ The accused who pleaded guilty must only be called in as witness for the prosecution after his
case is dealt with, ie after he is convicted or acquitted. (or to remove him as the accused all
together instead of jointly charge him with another co-accused)

Seet Ah Ann v PP [1950] MLJ 293

Fact : In this case the appellant was charged with having abetted the offence of receiving
illegal gratification under section 161 of the Penal Code and one Yap Fook Cheong was
charged with receiving the said illegal gratification. At the trial, the DPP asked the Court
to discharge the appellant not amounting to an acquittal and informed the Court that the
appellant would be called as a witness against Yap Fook Cheong. The appellant was
thereupon discharged and he was subsequently called as a witness in the proceedings
against Yap Fook Cheong, which terminated in an acquittal.
Held : In England, a co-accused person is called as a witness only after he has been dealt with
for his offence, this practice should be followed in Malaya. Hence, in this case, the
appellant cannot be summoned as a witness without being convicted or acquitted.

28 | Page
 Chapter 1, Part 3: Section 173(c), (d) & (e)
1) Section 173 (c) – when accused doesn’t plead guilty
● Section 173(b) provides for situations when the accused pleads guilty. Section 173(c) provides for situations
when the accused doesn’t plea guilty.
● Section 173 (c) :
If the accused person refuses to plead or does not plead or claims to be tried, the court shall proceed to
take all such evidence as may be produced in support of the prosecution’
● Under s173(c), the consequence of not pleading guilty is commencement of trial. There are 3 scenarios a
trial can commence under para (c) and they are as follows:-
i. if the accused refuses to plead
ii. if the accused does not plead
iii. he claims to be tried straight away.
● As a side note, a trial can also commence when an accused pleas guilty but the court finds it to be
qualified/reserved/conditional, as discussed under S173(b).

1.1) It is the accused’s right to plead not guilty & claim for trial under S173(c )
● Under S173(c), it is the prerogative of the accused to plea not guilty and claim trial.,
[Siow Choon See]
Fact : The accused was charged with an offence of contravention of certain provisions of the
Prevention of Crimes Ordinance. After his arrest, he was produced before a Magistrate at Muar
where he initially pleaded guilty. However, the Magistrate found he had no jurisdiction to try the
case, so he transferred it to the Sessions Court. When produced before the Session Court
President, the accused attempted to plead not guilty. The President however, refused to allow
him to do so on the ground that there was no sufficient reason. The accused appealed.
Held : It was held that it is the prerogative (right) of the accused to plead not guilty and claims to be
tried.

1.2) Duty of Court to take all evidence when accused pleads not guilty under S173(c)
● The word “evidence” in the phrase “to take all such evidence as may be produced in support of the
prosecution” under S173(c) is explained in this case:

[Ng Ban Leong v PP]

Held : Any discrepancy or uncertainty pertaining to the accused’s assertions/words in making the plea
is a question to be determined at trial & not at the stage when his plea is taken.
: Under S173(c), the phrase “take all evidence as may be produced in support of the
prosecution” means all those evidences which the prosecution thinks will prove his case &
available at the time of trial. (This means that all the evidence that the prosecution wants to bring
must be available at the time of the trial.)

● Such “evidence” is not only limited to witness statements but also exhibits (exp: documents , weapons
etc)
- this is the reason why once a place is considered a crime scene, the crime scene must be contained
and we cannot touch anything.

1.2.1) The accused must present when the evidence is brought

29 | Page
 ● Under S264 of CPC,23 the general rule is that, all evidence must be taken the court in the accused’s
presence or if he can’t present, at his counsel’s presence.
● In practise, evidence will be taken down in handwriting or recorded and forms part of the record -
usually in narrative form

1.3) Accused to be acquitted if the evidence is not sufficient to establish a case

● If the evidence that the PP tenders is insufficient to establish a case, then the court can acquit the
accused.
[PP v Mohd Said]
Fact : In this case, the respondent had been originally charged in 1979 for the offence of dangerous
driving alleged to have been committed in September 1978. After a number of postponements,
the trial commenced on 2 October 1979. After 6 witnesses had given evidence for the
prosecution, the prosecution could not proceed as 2 material witnesses could not be traced. The
part-heard case was adjourned from time to time until a final postponement was allowed for
continued hearing on 18 February 1981.

On that day, the 2 witnesses were still not available and the magistrate discharged the accused.
Subsequently, the prosecution re-charged the accused. When this 2nd prosecution came up for
hearing, the witnesses were still not available and a final postponement was given up to 10
November 1981. On that date, the prosecution’s application for an adjournment was refused. 
The magistrate ordered that the accused be discharged amounting to an acquittal and hence this
appeal by the prosecution. 
Held : It is the duty of the Magistrate to take all the evidence before it and record the same as may be
produced by the prosecution. If no such evidence is forthcoming or if the evidence available is
insufficient to establish the case, the magistrate is entitled to acquit the accused.

● However, if the evidence of the PP is not even heard, no matter how many times the trial is postponed
for any reasons, the Court can’t acquit the accused:
[PP v Zainudin bin Sulaiman]
Fact :  In this case, the respondents were first charged on November 9,1976 but the case against them
had been postponed at least 12 times since then to the date when the magistrate ordered acquittal
in their favour on Jnuary 19,1984. The DPP asked for revision of the decision but the application
was turned down.
Issue : In view or Article 145(3) of the Federal Constitution and section 173(c) and (f) of the CPC,
whether it is right for a Magistrate in a summary trial to acquit and discharge an accused person
without hearing any evidence for the prosecution. 
Held : In summary trial, paragraphs (c) and (f) of section 173 of the CPC do not empower the court to
order a discharge amounting to an acquittal of an accused person without hearing evidence
of the prosecution in support of its case. 

2) Section 173(d) 
● S173(d) basically provides that, when necessary, the court may summon witnesses that can help the
prosecution to establish the case:

S173(d) : When the court thinks it is necessary, it shall obtain from the complainant or otherwise, the
names

23
S264: Evidence to be taken in presence of accused
Except as otherwise expressly provided all evidence taken under Chapters XIX and XX shall be taken in the presence of
the accused or, when his personal attendance is dispensed with, in the presence of his advocate.
30 | Page
 of any persons likely to be acquainted and to be able to give evidence for the prosecution and
shall summon such people to give evidence before the court.

● Under this section, the court can summon any witness for prosecution and the “prosecution” here can be
both the state (aka PP) or private person.
●  The phrase “complainant or otherwise” indicates that situation may comprise of either private or non-
private summon case:
Private summons case : complainant will have to forward names of witnesses to the court to give
evidence. This is governed by S133 (examination of complainant)
Non-private summons case : Police or prosecution may forward names of witnesses to be summoned.

- Dr Janet : normally there will be private summons in minor cases 

2.1) Discretion of PP to call witness under Art 145(3) of FC

● In any event (private or non-private summon), under Article 145(3) of FC, the prosecution has a
discretion as to which witnesses should be called (which then decides what kinds of evidence will be
brought in)
● The court will not interfere with the exercise of such a discretion unless it can be shown that the
prosecution has been influenced by some oblique motive.  
● Therefore, the PP don’t have to call each and every witness for the trial since it is his discretion to call
which witness:

[Adel Muhd El Dabbah v AG of Palestine]

Fact : In this case, the appellant was convicted with murder contrary to s214(b) of the Criminal Code
Ordinance 1936, and sentenced him to death. An appeal by the appellant was dismissed on the
17th April 1943, by the Supreme Court of Palestine, sitting as the Court of Criminal Appeal, and
the appellant , by special leave, now appealed against the judgement.
Held : There is no obligation on the prosecution to tender all witnesses. The discretion to decide on
which witnesses to be called lies with the prosecution and the court will not interfere unless it
can be shown that the prosecutor has been influenced by some oblique motive. 

● However, if the DPP omits a few witnesses and these witness are of the crucial one, then the court may
invoke the adverse inference. Also, to establish a case, the PP must call all the necessary witness to
prove his case beyond reasonable doubt too or the accused will be acquitted:

[Ti Chuee Hiang v PP]

Fact : The appellant was charged with trafficking in 112.94 grams of heroin under s 39B(1)(a) of
DDA and was convicted and sentenced to death. The facts leading to the appellant’s arrest
showed that the police had used an informer who enticed the appellant to walk into a trap which
the police had pre-set. 

At the trial, however, the prosecution did not call the informer for examination and nor was he
offered to the defence as a witness. On appeal the appellant alleged that the said informer was
not a mere informer but was an agent provocateur. This being the case, the failure by the
prosecution to call him, the appellant argued, had occasioned a serious miscarriage of justice. 

Held : The prosecution has a duty to call all of the necessary witnesses to establish proof against the
accused beyond all reasonable doubt, and if, in the exercise of its discretion, it fails to fulfill this
obligation which is nothing less than a statutory duty - the accused must be acquitted. 

31 | Page
 ● In other words, if the omission of calling a witness doesn’t affect the establishment of a case, it is still
fine. But if such an omission caused a “serious gap” in the establishment of the case, then the accused
will be acquitted:

[Teoh Hoe Chye]

Fact : In this case, the appellant was charged under s 39B(1) of the DDA. According to the PP, the
accused was trafficking “Heroin”. However, during the trail, the investigating officer was not
called to testify the exhibit (the drug) was heroin, hence the identify of the exhibit was doubted.
Held : In the particular circumstance of this case, the failure to call the investigating officer had
caused a serious break in the chain of evidence relating to the identity of the exhibits. The SC
acknowledged the fact that it is unnecessary to call all evidence to ensure there is no break in the
chain of evidence.
: Where doubt arises as to the identity of exhibits, failure to adduce/produce evidence to provide
the necessary link to the chain of evidence would be fatal to the prosecution’s case. 

[Sia Soon Suan v PP]

Fact : The accused was charged under ISA for having hand grenades and ammunition without lawful
excuse. However, the evidence of handing over the grenades and ammunition to the police not
established. Hence, there was a material gap in the prosecution evidence.
Held :The requirement of strict proof in a criminal case cannot be relaxed to bridge any material gap
in the prosecution case. The court’s decision must be based on the evidence adduced and nothing
else. So, the conviction was set aside.

Cf

[Mohd Jalani bin Satiman v PP]

Fact: In this case, the accused was charged for cheating but the exhibit concerned was documentary.
Again, the Investigating Officer was not called.
Held : This case were distinguished from previous cases because in cases involving drugs, movements
were vital links to convict appellants/accused. However, since the exhibit concerned is
documentary, it was not fatal to the prosecution’s case when the Investigating Officer was not
called since documentary exhibits do not easily suffer from an impediment as to their identity.

● This case laid down propositions on how to handle the witnesses:

[Teh Lee Tong v PP]
Held:
i. All witnesses whose statements have been taken should be brought to court by the prosecution
except those whose evidence will clearly and obviously throw no light to the case.
ii. Having brought witnesses to court, prosecuting officer is not bound to call or offer for cross-
examination a witness whose evidence is (in his opinion) unnecessary or hostile 
iii. However, witnesses who were brought to court but not called or offered for cross-examination
must be brought to the court’s attention so they are available to be called by the defence or by
the court if the court thinks it necessary

● Unless cases for your free time reading.24

24
[Heng Poh Kean v PP]
Fact: The 3 appellants were charged and tried together at the HC of Kuala Lumpur for drug trafficking under s.39B (1)(a) of the DDA.
Held : The prosecution had failed to prove a prima facie case against all the three appellants and their defence should not have
been called. So, the three appellants were acquitted.

32 | Page
3) Section 173(e): Right of accused to cross-examine all witness
● S173(e) : The accused shall be allowed to cross-examine all the witnesses of the prosecution. 
● Denial of opportunity to the accused to cross-examine the prosecution witness will be an improper
exercise of judicial discretion and will amount to miscarriage of justice.
● The right to be cross-examined is a constitutional right because then it will constitute to the right to fair
trial which includes the right to complete cross-examination of all material witnesses produced by the PP.
(Though, refusal to cross examine is not the same as not being allowed to be cross examined)
[Kamalan Shaik Mohd]
Fact : This case involves a police who has been charged with corruption. There was incomplete cross
examination on a material witness of the prosecution.
Held : The right to cross-examine is a constitutionally guaranteed right to a fair trial which includes a
complete cross-examination on a material witness. Thus, the conviction and sentence were set
aside. 

● The issue is what if we have the prosecution witness who had been impeached? Can the witness still be
cross-examined by the defence counsel or not? 
- Impeachment of a witness will be done if the witness is being inconsistent in his statement. The
prosecution may impeach their own witness if there is material discrepancies between what was said
earlier and what is said now (and this is against their own case). 
- If the prosecution had decided to impeach the witness, this means that the credibility of the is being
challenged.
- However, impeaching their own witness does not mean that the witness will no longer be the
prosecution witness. 
- In practice, our courts have been very liberal and does not deny or interfere in cross-examination. To
the credit of our courts, notwithstanding, there is no express provision to defer cross-examination.
Our courts have permitted the cross examination of any witness to be deferred until any other
witnesses to be recalled for further cross examination.

[Dato’ mokhtar hashim] [1983] 2 MLJ 23225

[Abdullah Zawawi]
Fact : The appellant and his wife were jointly charged with the offence of trafficking in dangerous drugs. 592.6g of cannabis was
found in a wooden box in the house which at that time was occupied by the appellant, his wife, their children and another
man. At the conclusion of the trial, the wife of the appellant was acquitted and discharged but the appellant was convicted
and sentenced to death. The appellant has appealed
Held : Having examined the evidence led by the prosecution afresh, the court found that the evidence left too many questions
unanswered. So, the PP failed to prove his case.

25
Old position: (Dr Jaanah: which is wrong)

[PP v Munusamy] [1967] 1 MLJ 238

Fact: In this case, one of the witness, PW 16 was impeached by the prosecution. The accused requested to PW 16 but was refused by
the magistrate and was convicted. So, the accused appealed all the way to Federal Court. One of the points submitted by the
defence was that paragraph (e) allows him to cross-examine every prosecution witness. Thus, when witness an application by
the defence to cross-examine PW16, it should have been allowed. Refusal to allow such application was fatal to the
proceedings. 
Held : After the ruling made by the magistrate to impeach the credit of PW 16, that witness was longer a witness for the
prosecution in the sense that his evidence no longer constituted any part of the prosecution case.
: However, since the refusal to allow the impeached witness to be cross-examined did not constitute a misdirection, as there
was no failure of justice. Even if it was, the Federal Court has power to dismiss the appeal. Hence the accused’s appeal was
dismissed. (It seems here that the court also confused whether or not it should be allowed to cross examined)

33 | Page
Fact : The trail judge impeached a witness and refused to let the defence counsel to cross-examine the
witness.
Held : The trail judge was wrong to do so. The right of an accused to cross-examine a witness cannot
be denied. When impeachment proceedings have been completed, no ruling should be made
as to the credibility of the witness. This should be done only after all witness prosecution
have been called and given evidence at the end of the prosecution’s or defence case.

- Based on this case, when a prosecution witness had impeachment proceedings completed against
him, he may still be cross-examined by the defence. 
- This case shows that the cross-examine process is so important to the right of the parties especially
the right of an accused. We have to wait until the trial ends to determine whether the witness had
been impeached or not 
- The right of cross-examination or re-examination an impeached witness should not be denied the
witness’s credit might be repaired during such cross-examination.

34 | Page
 Chapter 1, Part 4: SECTION 173 (f), (h) & (m)
1) Introduction
● In a trial, there are 2 stages : end of prosecution case and end of trial , which is governed by section 173 (f)
& (m) respectively.
● During these 2 stages, there are 4 scenarios, which is governed by section 173 (f), (h) & (m):

DUTY OF COURT

END
END OF TRIAL
PROSECUTION
(m)(i)
CASE (f)(i)

(m)(ii) there is
(f)(ii) no Prima (h)(i) Prima Facie - (m)(iii)no Burden
Burden of Proof -
Facie- acquit brings in defence of Proof - acquit
convict

2) What court should do at the end of prosecution’s case & trial?

2.1) What court should do after the PP’s case

S173(f)(i) : At the end of Prosecution’s case, the court, the court must determine whether the
prosecution has made out a prima facie case against the accused.

● If there’s no prima facie case:

S173(f)(ii) : If there is no prima facie case, the court shall order an acquittal. 26

● If there’s a prima facie case:

S173(h)

26
Section 173(f)(ii):
If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an
order of acquittal.

Old position (may ignore)

Arulpragasan a/l Sandaraju v PP [1996] CLJ 597
Held: In this case, the court ruled that the prosecution has to establish the charge against the accused beyond
reasonable doubt at the close of the prosecution’s case. (However, subsequently in 1997, section 173(f) was
amended to provide for a “prima facie” test at the close of the prosecution’s case. The amendment substituted the
phrase “if unrebutted would warrant his conviction” with the phrase “a prima facie case”.)
35 | Page
 (i) : If there is a prima facie case, the court shall call upon the accused to enter on his defence. 27
The accused has 3 options as stipulated in (ha) (ie to give sown evidence, to give unsown
statement or to remain silent).28 (will be explained further in heading 4)
(ii) : If there is a prima facie case has been made out against the accused on an offence other than the
offence charged, the court shall amend the charge.
(iii): For (i) & (ii) a prima facie case is made out against the accused where the prosecution has
adduced credible evidence proving each ingredient of the offence which if unrebutted or
unexplained would warrant a conviction. (will be explained further in heading 3)

2.2) What court should do after the whole trial? (will be explained more in heading 5)
● S173(m)
(i) : At the end of trial, the court must consider all the evidence and determine whether the
prosecution has proved its case beyond reasonable doubt. (as opposed to prima facie case
during PP’s case)
(ii) : If the prosecution has proven its case beyond reasonable doubt, the court will find the accused
guilty and pass the sentence according to law. 29
(iii) : If the court finds that the prosecution has not proved its case beyond reasonable doubt,
the court
shall order an acquittal.30

3) What is prima facie31?

● Section 173(h)(iii) provided that a “prima facie case” is made out against the accused where the
prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or
unexplained would warrant a conviction.
[PP v Chin Yoke] [1940] MLJ 47
27
Section 173(h)(i):
If the Court finds that a prima facie case has been made out against the accused on the offence charged, the Court shall
call upon the accused to enter on his defence.
28
(ha) When the Court calls upon the accused to enter on his defence under subparagraph (h)(i), the Court shall read
and explain the three options to the accused which are as follows:
(i) to give sworn evidence in the witness box;
(ii) to give unsworn statement from the dock; or
(iii) to remain silent.
29
Section 173(m)(ii):
If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the accused
guilty and he may be convicted on it and the Court shall pass sentence according to law.
Provided that before the Court passes sentence, the Court shall, upon the request of the victim of the offence or the
victim’s family, call upon the victim or a member of the victim’s family to make a statement on the impact of the offence on
the victim or his family; and where the victim or a member of the victim’s family is for any reason unable to attend the
proceedings after being called by the Court, the Court may at its discretion admit a written statement of the victim or a
member of the victim’s family
30
Section 173(m)(iii):
If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall record an order
of acquittal.
31
Meaning of Prima facie:
Jowitt’s Dictionary of English law:
Prima facie means “at first sight” or “on the face of it”. Prima facie case would suggest that a case viewed on its face value
without thoroughly examining it in depth.

Oxford Companion of Law:

A case which is sufficient to call for an answer. Prima facie evidence is evidence which is sufficient to establish a fact in
the absence of any evidence to the contrary, but it is not conclusive.
36 | Page
 Held : A prima facie case is a case which, the evidence, if unrebutted, would warrant the
accused's conviction. A litigating party is said to have a prima facie case when the evidence in
his favour is sufficiently strong for his opponent to be called on to answer it. A prima facie case
can only be overthrown by rebutting evidence adduced by the other side.

PP v Dato Seri Anwar bin Ibrahim (No.3) [1999] 2 MLJ 1

Held : A prima facie case arises when the evidence in favour of a party is sufficiently strong for the
opposing party to be called on to answer. The evidence adduced must be such that it can be
overthrown only by rebutting evidence by the other side.
: The force of the evidence must be such that, if unrebutted, it is sufficient to induce the court to
believe in the existence of the facts stated in the charge or to consider its existence so probable
that a prudent man ought to act upon the supposition that those facts existed or did happen.
: As this exercise cannot be postponed to the end of the trial, a maximum evaluation of the
credibility of witnesses must be done at the close of the case for the prosecution before the court
can rule that a prima facie case has been made out in order to call for the defence.
PP v Mohd Radzi Abu Bakar [2006] 1 CLJ 457
Held : The court in this case laid down some guidelines and summarized the steps that should be taken
by a trial court at the close of the prosecution’s case, as follows:
(i) At the prosecution’s case, the court must fully evaluate the PP’s evidence including
carefully scrutinising the credibility of each of the prosecution’s witnesses. Then. take
into account all reasonable inferences that may be drawn from that evidence. If the
evidence admits of two or more inferences, then draw the inference that is most
favourable to the accused;
(ii) Then the court should ask itself:” If I now call upon the accused to make his defence and
he elects to remain silent am I prepared to convict him on the evidence now before me? If
the answer to that question is "Yes", then a prima facie case has been made out and the
defence should be called. If the answer is "No" then, a prima facie case has not been
made out and the accused should be acquitted;
(iii) After the defence is called, if the accused elects to remain silent, the court should
convict the accused
(iv) Ifafter defence is called, the accused elects to give evidence for his defence, then go
through the steps set out in Mat v. Public Prosecutor [1963] 1 LNS 82; [1963] MLJ 263.
● Other cases illustrating the same points (may ignore)32
32
[Arulpragasan a/l Sandaraju v PP] [1997] MLJ 1
Held: Prima facie evidence is evidence which appears to be sufficient to establish a fact unless rebutted by acceptable evidence
to the contrary but it is not conclusive.

Looi Kow Chai & Anor v PP [2002] 2 MLJ 65- CA

Held : There is only one exercise that a judge sitting alone under s 180 of the Code has to undertake at the close of the
prosecution case. He must subject the prosecution evidence to maximum evaluation and to ask himself the
question: If I decide to call upon the accused to enter his defence and he elects to remain silent, am I prepared to
convict him on the totality of the evidence contained in the prosecution case? If the answer is in the negative then
no prima facie case has been made out and the accused would be entitled to an acquittal.
37 | Page
3.1) When there’s no prima facie case:
S173(f)(ii) : If there is no prima facie case, the court shall order an acquittal

Gunasegaran a/l Singaravelu v PP [2009] 7 MLJ 761

Facts : The accused was charged for causing death by dangerous or reckless driving. The accused gave his
defence bur the magistrate still convicted him. On appeal, he accused argued that the magistrate
who had based his decision entirely upon the evidence of SP5 and SP6, did not furnish any
reason(s) as to why he preferred their version of the accident as opposed to the appellant's
version of the accident. The magistrate also failed to scrutinise and evaluate the whole of the
evidence adduced by the prosecution and further had erred in law when he did not judicially
appreciate the defence case
Held :In this case, the prosecution had failed to make out a prima facie case against the appellant. So, the
acsued should have been acquitted and discharged at the close of the prosecution case.

3.2) Judge no need justify himself in the judgement for calling the accused to enter defence
● It was discussed that if no prima facie case is made, the court should acquit the accused and if a prima
facie case has been made, the court must ask the accused to enter defence.
● In this situation, the trial judge or a magistrate is not obligated to record his reasons for ordering the
accused to enter his defence. There is no statutory provision requiring a trial judge to prepare grounds of
judgment in finding a prima facie case.

Junaidi Abdullah v PP [1993] 3 MLJ 217

PP v Hanif Basree bin Abdul Rahman [2008] 4 CLJ 1

Held : The definition of prima facie is now defined as “where the prosecution has adduced credible evidence proving
each ingredient of the offence which if unrebutted or unexplained would warrant a conviction” as per S173(h)(iii)

Q: if he decides to call upon the accused to enter his defence and he elects to remain silent, is he prepared to convict
him on the totality of the evidence contained in the case for the prosecution?
Dr Jaanah: The word “if” is a hypothetical question, means, is there a case to answer? If he decides there’s a prima facie case
and the defence is called, under S173(ha) he has three options i) sworn testimony ii) unsworn testimony and iii) he remains
silent. If he remains silent and there are no other evidences from the defence, then the court would convict him because
prima facie means if unrebutted would warrant a conviction.
PP v Mohd Aszzid Abdullah [2008] 1 MLJ 281
Held : A prima facie case is established where there is sufficient evidence to be called upon to answer and evidence
adduced by the prosecution must be such that it can only be overthrown upon hearing evidence in rebuttal by the
defence to the prosecution case.
: The force of the evidence adduced must be such that, if unrebutted, it is sufficient to induce the court to believe in
the existence of the facts stated in the charge or to consider its existence so probable that a prudent man ought to act
upon the supposition that those facts that exist did not happen.
: The court must at the close of the prosecution case undertake a positive evaluation of the credibility and reliability
of all the evidence adduced so as to determine whether the elements of the offences have been established.
: The test is: is the evidence sufficient to convict the accused if he elects to remain silent? If there is any such doubt
there can be no prima facie case. As the accused can be convicted on the prima facie evidence, it must reach a
standard which is capable of supporting a conviction beyond reasonable do

38 | Page
 Held : The judge doesn’t have to give reasons for calling the accused to enter defence, it is not
obligatory or even necessary to do so. By calling an accused to enter his defence, it is assumed
that the trial judge must have evaluated the evidence and is satisfied that the prosecution had
established a prima facie case which, if unrebutted, would warrant a conviction of the accused.
4) Section 173(h)- When there is a prima facie case after PP’s case
● As stated earlier, S173(h) (i) – (iii) governs the situations when there is a prima facie case after PP’s case.33
● Then Section 173 (ha) provided that:
When the Court calls upon the accused to enter on his defence under subparagraph (h)(i), the Court shall
read and explain the three options to the accused which are as follows:
i. to give sworn evidence in the witness box;
ii. to give unsworn statement from the dock;(don’t be confused with “statement from the dock” which
usually refers to sworn statemets) or
iii. to remain silent.
4.1) Section 173 h(i)
Section 173 h(i) : If the Court finds that a prima facie case has been made out against the accused on the
offence charged, the Court shall call upon the accused to enter on his defence.

● This provision is mandatory.

Saad bin Abas v PP [1999] 1 MLJ 12934
Held : This provision is mandatory. If at the end of the prosecution case the court finds that there is a
prima facie case against the accused, the court has no other option but to call upon the accused to
enter on his defence because of the word 'shall'. Then, the accused must comply with the order
by making his defence.
: A criminal trial involves both the prosecution case and the defence as being one single process.
There is no room for the accused to avoid the issue of presenting his case.

P/s: Also, note that when a case’s decision is not final, you can appeal against the decision to a higher
court.35
4.2) Section 173(h)(ii)
33

(i) If the Court finds that a prima facie case has been made out against the accused on the offence charged, the court shall call
upon the accused to enter on his defence
(ii) If the Court finds that a prima facie case has been made out against the accused on an offence other than the offence charged
which such court is competent to try & which in the opinion of the court it ought to try, the Court shall amend the charge
(iii) For the purpose for subparagraphs (i) and (ii), a prima facie case is made out against the accused where the prosecution
has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant
a conviction.

34
Facts:Both the applicants were preferred with a charge each for an offence of using criminal force on a female adult
under s 354 of the Penal Code. They were jointly tried and the magistrate acquitted and discharged both of them at the
end of the prosecution’s case. The deputy public prosecutor appealed.
35
Karpal Singh a/l Ram Singh v PP [2012] 5 MLJ 293
Fact: The appellant was charged. At the close of the prosecution case, the High Court judge acquitted the appellant without his
defence being called. The prosecution appealed to the Court of Appeal, which set aside the acquittal, directed the case
transmitted back to the High Court and ordered the defence to be called. The appellant filed an appeal to the Federal Court
against the decision of the Court of Appeal. In response, the prosecution applied a motion for the appellant’s appeal be
struck out on the grounds that the decision of the Court of Appeal was not an appealable decision.

39 | Page
 Section 173(h)(ii): If the Court finds that a prima facie case has been made out against the accused on an
offence other than the offence charged which the Court is competent to try and which in the opinion of the
Court it ought to try, the Court shall amend the charge.

● However, this doesn’t mean the court have to amend the charges in every case. This is so only when the
case is clear. When the case is unclear, it is the for the PP to decide what the proper charge is.

PP v Heng You Nang [1949] MLJ 285

Held :Under section 173(h), subordinate courts have a duty to consider the charge and amend it if
necessary. However, this section doesn’t make it incumbent on the court to search the law for
offences which an accused person may have committed.
: When the case is clear, the court ought to amend the charges. But if it is not, then it should be
for the prosecution to decide what their real complaint against the accused is and to frame their
charges or to submit amendments accordingly.

● Hence, when the fact is clear, it is the court’s duty to amend the charge:
PP v James Tan [1983] 2 MLJ 173
Facts :The prosecution appealed against the order of the magistrate discharging and acquitting the
accusedon a charge for corruption. The magistrate found that the prosecution had failed to
establish a prima facie case against the accused. The magistrate held that the facts appeared more
like the offence of cheating by the accused, rather than corruptly receiving money on account of
the income tax officers, and therefore did not call the accused to enter upon his defence. The
Deputy Public Prosecutor contended that if that’s the case, the magistrate ought to have
exercised the powers under 173(h) of the Criminal Procedure Code to amend the charge.
Held : The section does not make it incumbent on the court to search the law for offences which an
accused person may have committed. The Court has a discretion not to amend the charge if
doing so would be unjust or an accused person would be prejudiced by such amendment.
: However where the facts do not establish a prima facie case against the accused person on the
charge preferred against him but disclose another offence for which he is not charged, the Court
ought to amend the charge unless he has a good reason not to do so.
: In the present case, the facts as found by the Magistrate would point clearly to an offence of
cheating having been committed but the Magistrate has not given any reason as to why he did
not amend the charge.

4.3) Section 173(h)(ii)

(this section defined the word “prima facie” and this had been discussed in heading 3)
4.4) Section 173(ha)

The prosecution argued that when the Court of Appeal decided that a prima facie case had successfully been established at
the close of the prosecution case, that decision did not finally dispose of the rights of the parties and only after hearing the
defence of the appellant, the High Court could make a final decision.
Thus, without the finality element in the decision of the Court of Appeal, the appeal was incompetent and hence non-
appealable.

Held : Since the order of the Court of Appeal was not a final order, the appeal filed by the appellant was non-appealable and
hence incompetent

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 Section 173(ha): When the Court calls upon the accused to enter on his defence under subparagraph (h)
(i), the Court shall read and explain the three options to the accused which are as follows:
(i) to give sworn evidence in the witness box
(ii) to give unsworn evidence from the dock
(iii) to remain silent

(i) right to give sworn evidence in the witness box

If the accused give sworn statement, the PP can cross-examine the accused and may be impeached
if found cheating.
PP v Wong Yen Sen [1990] 1 MLJ 187
Held : Where an accused elects to give sworn evidence, the PP is entitled to cross-examine the
accused as of right. When the accused has made any previous statement to the police, the
accused could be impeached or cross-examined based on his or her own previous
statement.

(ii) right to give unsworn evidence from the dock

● It is the accused’s substantive right to give unsworn statement. The difference between the a
sworn and an unsworn statement is the weightage of such evidence given.
Ahmad Faizal Ali bin Aulad Ali v PP [2010] 2 MLJ 547
Held : The accused’s right to make an unsworn statement from the dock is not a procedural
right but a substantive right.
: However, an unsworn statement has to be evaluated by the trial judge and given the
weight as the trial judge thinks fit, but the such weight accorded cannot be the same as
the weight that a trial judge would give to a sworn statement.

Other similar cases:36

● However, even if the weightage of an unsworn evidence is less than sworn evidence, the court
must still consider it:

Mohd Nazri v PP [2014] 1 LNS 576

Held : Failure by the trial judge to consider unsworn evidence amounts to a misdirection and a
conviction is liable to be set aside.

Similar judgment:37

(iii) right to remain silent

36
Ip Ying Wah v PP [1958] MLJ 34
Held : When an accused makes a statement from the dock, he is not liable to be cross-examined.

PP v Mohd Salleh [1969] 1 MLJ 104 – this is a substantive right

Held : The accused has the right to make his an unsworn statement from the dock if he wishes to do so. Such a right is not a
procedural right but a substantive right. Hence, it does not matter if there is a specific provision for it in the Criminal
Procedure Code. This right can be taken away only by an express statutory provision to that effect.

37
Azahan Mohd Aminallah v PP [2005] 1 CLJ 374
Held : For the purpose of a trial, an unsworn statement from the dock is “evidence”. Hence, an accused who elects to
make an unsworn statement from the dock “elects to give evidence”.
41 | Page
 ● An accused person has an absolute discretion to elect not to give evidence under oath or to
make any statement from the dock. However, the counsel also has a duty to explain to the
appellant the consequences of remaining silent.
- At the same time, the accused may call other defence witnesses in support of his defence
or to cast doubt on the prosecution’s case. If he doesn’t, no adverse inference may be
drawn against an accused person for exercising his right to remain silent.

Goh Ah Yew v PP [1949] MLJ 150

Held : No adverse inference may be drawn against an accused person for exercising his right to
remain silent as the accused has no duty to call any evidence even if he remain silent. He
is at liberty to offer evidence or not as he thinks proper.

5) Section 173(m) – After trail

As mentioned, S173(m) governs situations after trial:
(i) At the conclusion of the trial, the Court shall consider all the evidence adduced before it & shall decide
whether the prosecution has proved its case beyond reasonable doubt.

(ii) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find
the accused guilty & he may be convicted thereon & the Court shall pass sentence according to law.

Provided that before the Court passes sentence, the Court shall, upon the request of the victim of the
offence or the victim’s family, call upon the victim or a member of the victim’s family to make a
statement on the impact of the offence on the victim or his family; and where the victim or a member of
the victim’s family is for any reason unable to attend the proceedings after being called by the Court,
the Court may at its discretion admit a written statement of the victim or a member of the victim’s family

(iii) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall
record an order of acquittal

5.1) Application of S173(m)

● S173(m) is mandatory. Failure to observe this provision is misdirection of law.
PP v Selvarajoo a/l Ramachandran
Held : If the court finds that prosecution has proved its case beyond reasonable doubt (BRD), the court
shall find the accused guilty and may convict the accused provided the court before passing the
sentence shall call upon the victim of the offence or a member of the victim's familyto make a
statement on the impact of the offence committed against the victim or his family.
: In the event the court finds the prosecution has not proved its case BRD, the court shall record
an order of acquittal.
: Failure of the trial judge to observe this provision is a misdirection of law.

● Under S173(m)(i), the judge must consider all the evidence judicially and fairly.
PP v Datuk Tan Cheng Swee [1980] 2 MLJ 27
Held : The court should reasonably, properly, and judicially consider the defence in the light of the
prosecution case and come, on the totality of the evidence before it, to a correct decision, without
fear or favour, in the proper exercise of its judicial function

42 | Page
 ● Under S173(m)(iii), “sentence according to the law” means within the ambit of punishable section
AND assessed in accordance with establish judicial principles (ie, to to balance the law with competing
policies)

PP v Jafa bin Daud [1981] 1 MLJ 315

Held : “A sentence according to the law” means that the sentence must not only be within the ambit of
punishable section, but it must be assessed and passed in accordance with established judicial
principals.

PP v Tan Fook Sum [1999] 2 SLR 523

Held : Passing a sentence in accordance with “established judicial principles” means, when the law as
to punishment is open-ended, the court must balance the diverse and competing policy
considerations. These are retribution, deterrence, prevention and rehabilitation.

5.2) What is proof beyond reasonable doubt38?

Miller v Minister of Pensions [1947] 2 All ER 372
Held : Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law
would fail to protect the community if it admitted fanciful possibility to deflect the course of
justice.
: If the evidence is so strong against a man as to leave only a remote possibility in his favour,
which can be dismissed with the sentence, ‘of course it is possible but not in the least probable,’
the case is proved beyond reasonable doubt, but nothing short of that will suffice.

Dato’ Mokhtar Hashim v PP

Held : The rebut the PP’s case, the defence only has to cast a doubt on the prosecution’s story.
However, to warrant an acquittal, the doubt created must not merely be a fleeting doubt or
a capricious doubt in respect of which a substantial reason can be given.

5.3) Distinction between Prima Facie and BRD

Arulpragasan a/l Sandaraju v PP [1996] CLJ 597
Held : If a prima facie case is proven against an accused, it is a mere prima facie supposition that the
accused may be guilty. The trial must proceed, & the defence would have to be called. On the
other hand, if the PP failed to prove his case beyond all reasonable doubt, then the accused wil be
acquitted & discharged without his defence being called.

6) Procure to be taken during trial

● This case explains the procedure to be taken during a trail:
Mat v PP [1963] MLJ 263
Held:
1. If the court accepts the explanation/ defence given by the accused, it must acquit the accused.
2. But if the court doesn’t, the Court can’t convict the accused straight away since the PP still have to
burden to prove his case BRD. If the PP fails to do so or the accused raised a reasonable doubt, the
accused can still be acquitted.

38
Case to illustrate BRD:
PP v Hanif Basri bin Abdul Rahman
Fact: The accused was charged for the murder of his intimate friend. The deceased’s body was found by her apartment
mates. She was found facing downwards and with her mouth stuffed with two face towels. Her hands were tied
behind her with a black brassiere. Her legs were also tied but with a black electrical cord. Wet tissue papers were
recovered from a waste paper basket in the deceased’s room.
Held : The prosecution's case was tainted. The accused was acquitted as there was a third person present in the room.
43 | Page
 3. If upon the whole evidence, the court is left in real state of doubt, the prosecution has failed to satisfy the
onus of proof.
4. Thus, if a Magistrate believes the PP’s evidence or disbelieves the accused’s evidence, he still has to
consider whether the defence has succeeded in raising a reasonable doubt on the prosecution, on the case
as a whole. It is not for the accused to convince the magistrate of the truth of his explanation; it is
sufficient if the explanation may reasonably be true, even if the magistrate is not convinced of its truth

The whole process may be summarized as followed:

i. If the PP proved his case beyond reasonable doubt as to the accused's guilt = convict
ii. However, if the court accepts the accused's explanation/ defence = acquit.
iii. If you do not accept the accused's explanation = do not convict but consider the next steps below:
- If that explanation does not raise in your mind a reasonable doubt as to his guilt = convict.
- If that explanation nevertheless raises in your mind a reasonable doubt as to his guilt = acquit.

● Other cases with same principles 39

39

Murugiah v PP [1941] MLJ 17

Held: Where a Magistrate believes the witnesses for the prosecution & disbelieves the accused’s evidence, he still has to
consider whether the defence has succeeded in raising a reasonable doubt on the prosecution, on the case as a whole.
Further it is not for the accused to convince the magistrate of the truth of his explanation; it is sufficient if the
explanation may reasonably be true, even if the magistrate is not convinced of its truth.

Mohd Radhi bin Yaacob v PP

Held : Whenever a criminal case is decided on the basis of truth of the prosecution’s case as against the falsity of the
defence story, a trial judge must in accordance with the principle laid down in Mat v PP go one step further before
convicting the accused by giving due consideration as to why the defence story, though could not be believed, did
not raise a reasonable doubt in the prosecution case.
: Thus, even though a judge does not accept or believe the accused’s explanation, the accused must not be convicted
until the court is satisfied for sufficient reason that such explanation does not case a reasonable doubt in the
prosecution case.
: It is well-established principle of Malaysian criminal law that the general burden of proof lies throughout the trial
on the prosecution to prove beyond reasonable doubt the guilt of the accused for the offence with which he is
charged. There is no similar burden placed on the accused to prove his innocence. To earn an acquittal, his duty is to
merely cast a reasonable doubt in the prosecution case.

PP v Saimin [1971] 2 MLJ 16

Fact : The three accused were charged for theft. At the end of the prosecution’s case, the magistrate ruled that there
was a prima facie case for the accused to answer, but subsequently said: I am making this ruling not because I am
satisfied with the case of the prosecution but because I want the accused to explain for themselves. Having called
upon the accused for their defence and having heard all of them, he observed: Having heard all the evidence the
court is partially satisfied that the charge has been proved since the accused have not given any reasonable
explanation as to the charge against them. However, in view of the facts which have been given by PW3 and PW4
whom the court feels have an axe to grind, the court is taking a lenient view of their offence
Held : it is the duty of the prosecution to prove the charge against the accused beyond all reasonable doubt and the
court is not entitled merely for the sake of the joy of asking for an explanation or the gratification of knowing what
the accused have got to say about the prosecution evidence to rule that there is a case for the accused to answer.
The proof of a case against the accused depends for its support, not upon the absence or weakness of the
explanation on his part, but on the positive affirmative evidence of his guilt given by the prosecution;
: a conviction cannot be sustained even if the court is satisfied that the prosecution’s story may be true unless and
until it is found that the prosecution story must be true. The burden of proof remains on the prosecution
throughout the trial. The falsity of the defence does not relieve the prosecution from proving the prosecution’s
case beyond reasonable doubt;
: evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to
prove the case against the accused. Therefore, if the magistrate was not satisfied with the case of the prosecution
it was his duty to acquit and discharge the accused at the close of the prosecution’s case.
44 | Page
 6.1) The trial judge has no powers to acquit an accused without hearing all the evidence presented by
the prosecution

Kuppusamy v PP [1948] MLJ 25

Facts : Proceedings had been instituted upon the complaint of a person under s 133 of the Criminal
Procedure Code (FMS Cap 6) against the appellant. The complainant appeared at the hearing and
asked for an adjournment. The magistrate discharged the appellant, but directed that the
discharge should not amount to an acquittal. Against this order the appellant appealed.
Held : Except in cases coming within the special circumstances under s254 of the Criminal Procedure
Code (FMS Cap 6), a magistrate cannot acquit an accused person until the evidence for the
prosecution has been heard.

PP v Zainuddin bin Sulaiman [1986] 1 CLJ 468

Fact :  In this case, the respondents were first charged on November 9,1976 but the case against them
had been postponed at least 12 times since then to the date when the magistrate ordered acquittal
in their favour on Jnuary 19,1984. The DPP asked for revision of the decision but the application
was turned down.
Issue : In view or Article 145(3) of the Federal Constitution and section 173(c) and (f) of the CPC,
whether it is right for a Magistrate in a summary trial to acquit and discharge an accused person
without hearing any evidence for the prosecution. 
Held : In summary trial, paragraphs (c) and (f) of section 173 of the CPC do not empower the court to
order a discharge amounting to an acquittal of an accused person without hearing evidence
of the prosecution in support of its case. 

Chapter 1, Part 5: SECTION 173(g)-(o)

1) SECTION 173(g)
● Section 173(g): the Court may discharge the accused after the PP’s case if the court finds the prosecution
baseless.

Section 173(g)
Nothing in paragraph (f) (ie after the prosecution’s case) shall be deemed to prevent the Court from
discharging the accused at any previous stage of the case if for reasons to be recorded by the Court
considers the charge to be groundless.

● Note: this paragraph only allows for the accused to be discharged and not acquitted. Have to cross-refer to
section 254 of the CPC where the Public Prosecutor may decline to prosecute further at any stage.

Section 254: Public Prosecutor may decline to prosecute further at any stage
(1) At any stage of a trial, before the delivery of judgment, the Public Prosecutor may inform the Court that
he will not further prosecute the accused on the charge and all proceedings on the charge against the
accused shall be stayed and the accused shall be discharged.
(2) At any stage of a trial before a Sessions Court or a Magistrates Court before the delivery of judgment,
the officer conducting the prosecution may inform the Court that he does not propose further to

45 | Page
 prosecute the accused upon the charge, and thereupon all proceedings on the charge against the accused
may be stayed by leave of the Court and, if so stayed, the accused shall be discharged of and from the
same.
(3) Such discharge shall not amount to an acquittal unless the Court so directs.

● New insertion (2010) Section 254A:

Section 254A: Reinstatement of trial after discharge.

(1) Subject to subsection (2), where an accused has been given a discharge by the Court and he is recharged
for the same offence, his trial shall be reinstated and be continued as if there had been no such order
given.
(2) Subsection (1) shall only apply where witnesses have been called to give evidence at the trial before the
order for a discharge has been given by the Court.

Note : Autrefois acquit is a plea made by a defendant who is charged of a crime or misdemeanor. It is
a peremptory plea or a plea made before the commencement of a trial. A person can use the
defense of autrefois acquit when he was tried and acquitted for a crime under the same facts.
: However, with the insertion of S254(A), such a plea is not available in Malaysia since the
accused may then be re-charged for the same offence.

[Kuppusamy v PP] [1948] MLJ 25

Held : A discharge under paragraph(g) does NOT amount to an acquittal for ‘the earliest stage”. A
magistrate can only acquit an accused person after hearing all the evidence for the prosecution,
which happens at the END of the prosecution’s case.

[Chu Chee Peng v PP] [1973] 2 MLJ 35

Held : There are cases constantly coming up in subordinate courts where the prosecution case
collapses at an early stage for many reasons. In that event, should the magistrate continue
hearing the prosecution case to the end whilst realizing that he must acquit the accused at the
end? Without the express powers given to him in para (g), the futile exercise is inevitable.
: But magistrates may occasionally be over-hasty; they may have misdirected themselves or
fallen into error in other ways when deciding to dismiss a case without wasting any more time
on the prosecution. Accordingly, they are required to state their reasons for doing so and, lest
their error lead to irremediable consequences, they are authorised only to ‘discharge’ the
accused; not to ‘acquit’ him.”

1.1) When to order DNAA (discharge not amounting to acquittal) and when to postpone?
● Under S173(g), there are times when the court should order a DNAA and there are times when the
case ought to be postponed. This will be explained below:

▪ When the investigation is not completed, the magistrate should order DNAA under S173(g)
and not postpone as the charge is groundless:

[Tan Kim San v PP] [1980] 2 MLJ 9940

40
Similar case:
Karumah v PP [1980] 2 MLJ 102
46 | Page
 Held : Where the investigation is not completed, the magistrate should order DNAA
(discharge not amounting to acquittal) under S173(g) and not postpone as the charge is
groundless since the prosecution has no grounds to prefer the charge.
: An accused should not be brought to court unless the investigation has been completed
& prosecution is able to prove the case against him. The procedure is – investigate first,
arrest later.

▪ When the investigation is completed but the prosecution is not ready to proceed, the
magistrate ought to POSTPONE the case instead of acquitting the accused.

[Hettiarachigae L.S.Perera v PP] [1977] 1 MLJ 12

Fact : Magistrate acquitted the accused for negligent driving. This is because the investigation
was completed but the prosecution was not ready to proceed. The PP applied for a
revision of the case.
Held : The order of the magistrate was set aside. Unless the prosecution informed the court that
he does not want to pursue with the case, no acquittal can be ordered.
: Therefore, when the investigation is completed but the prosecution is not ready to
proceed, the magistrate ought to POSTPONE the case instead of acquitting the accused.
● However, if the investigation is completed and the PP is ready to prosecute but for any reason, if the
material evidence can’t be produced, the Court can’t treat the PP’s case as has ended and acquit the
accused as though the prosecution’s case is baseless. This is because, under para (f) and (c), the
Court can only acquit the accused after considering all evidences, including those which are not
available at the trial but may be produced if adjournment is granted. The Court has no power to
acquit under para (f) until all these evidences are produced. 41

[PP v Zainudin] [1986] 2 MLJ 100

Held : Under para (f), the court will decide whether a case against the accused is made out or
not after the prosecution case based on "all the evidence hereinbefore referred to” (i.e all
the evidence presented to it by the PP.). While para (c) provided that if the accused
claims trial/ refuse to plead guilty, the court must take all evidence "all such evidence as
may be produced in support of the prosecution case".
: While these 2 phrases under para (c) and (f) bear the same meaning, it doesn’t mean the
court should only consider evidence available literally during trial. It also includes both
the evidence which is available at the trial and that which is not but will be made available

Held : If investigations are yet to be completed, then Magistrate should order DNAA because then although the person
is charged, such charge is deemed to be groundless.
41
Under the old position, if this happened , the court may refuse postponement and acquit the accused under para (f).
[PP v Mohd Said] [1984] 1 MLJ 50
Fact: The accused has been ordered a DNAA and several postponement has been made. Two material witnesses of prosecution still
not available at retrial. So, the Magistrate acquitted the accused.
Held : Decision of the Magistrate to acquit was upheld. This is because para (c) provided that if the accused claims trial/ refuse to
plead guilty, the court must take all evidence that can prove the PP’s case while para (f) provided that at the end of PP’s case,
the court shall determine if the PP has made out a prima facie case. (and if it is not, the court shall acquit the accused.)
: By reading both para (f) and (c) together, it means after the PP case, the court should only take ‘all such available evidence as
may be produced to prove the prosecution’s case at the trial’ therefore excluding other evidence which is not available at the
trail although such evidence is material and needed by P to support its case. Accordingly, if at the trial, the PP can produce
material evidence, the court can treat the PP’s case as has ended and may refuse adjournment as well as acquit the accused in
accordance to para (f).

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 if a postponement of the trial is granted. Thus, before such material evidence is not granted,
the Court has no power to acquit the accused under para (f).

1.2) Difference between acquittal under (f) and DDNA under (g)
Karpal v PP[1991] 2 MLJ 544
Held : Para (f) provides for the criterion for acquittal or conviction while para (g) provides the court
the power to discharge the accused (not acquit).
: The difference between para (f) and (g) is that under para (f), the court can acquit the accused
when the prosecution offers no further evidence at the end of his case to prove the offence
and hence no prima facie case has been made. And such “evidence” includes both evidence
presented during trial and those which are not available during trial for unavoidable reasons but
can be produced if postponement is granted. (refer to footnote for detailed judgement on this
part) 42
: While to discharge and accused under para (g), the court can do so if it considers the charge to
be groundless. The reason for this can be that the magistrate has no jurisdiction or the charge
does not disclose any offence. (instead of not enough evidence).
: If the court discharges the accused under para (g), the magistrate will have to record the
reasons for his decision. Also, if the accused is discharge under para (g), the prosecution can re-
charging the accused while for acquittal under para (f), the prosecution can’t charge the accused
for the same offence.

Au Seh Chun v PP [1998] 6 MLJ 179

Fact : The Court ordered the PP to supply the accused certain document. Hence, the PP asked for
postponement to allow the PP to supply such document. However, the police/ PP did not do so in
breach of the court’s order. So, the accused requested a discharge not amounting to an acquittal
on that ground.
Issue : Whether under CPC or under any law, the magistrate may discharge an accused person not
amounting to acquittal in response to non-adherence of the court’s specific instruction by the
prosecution, even though there was no indication by the PP of not being interested in pursuing
the matter further.
Held : Under section 173(g) of the CPC, the court mete out the order of discharge not amounting to an
acquittal if it considers the charge to be groundless. In the present case, the prosecuting officer
did not inform the court that he was not interested in pursuing the case, nor was there any
evidence to show that the charge was groundless. So, when a postponement by the Public
Prosecutor was requested, without the PP hinting that the charge is groundless or that he is
disinterested in pursuing the case further, the Court can’t make an order of discharge not
amounting to an acquittal as the condition of para (g) (ie the case is groundless) has not been
satisfied.

42
Karpal v PP[1991] 2 MLJ 544
Held: The expression 'all such evidence' under para (c) is include both evidence which is available to the prosecution and those could
not be produced for unavoidable reason at a specific date of hearing forming part of the trial. The term 'all such evidence' is
to be given a broad interpretation and should also include evidence which can be produced at the continued hearing of the
trial on a future occasion.
- The CPC doesn’t have provision to allow the court to strike out proceedings or to acquit without hearing all evidence
the prosecution has the capacity to offer, even though postponements are needed.
- If any party feels that the charge and consequent proceedings are illegal on the face of the record, which is rare, he
can take up appropriate proceedings before a High Court to quash the charge and the whole proceedings. It is absurd
and against common sense to believe that the legislature ever expected members of subordinate judiciary to exercise
vast powers, trespassing into the public prosecutor's area.

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2) Section 173(k)
Section 173 (k) : If the accused puts in any written statement, the Court shall file it with the record.

Abdullah bin Jacomah v PP [2002] 6 MLJ 324

Held : A statement from the dock is an alternative to a written statement that an accused may put in as
authorized by section 173(k) of CPC. The defence cousel m ay do so if he wanted.

● Example cases of written statement. (may ignore).43

3) Amendments of charge - Section 173(i) & (j)

3.1) Section 173(i)

Section 173(i) : If the charge is amended, it shall be read to the accused as amended and he shall be
asked again whether he is guilty of the offence in the amended charge.

Singah Mohamed Hussin v PP [1973] 2 MLJ 109

Fact : In this case, the appellant had been charged under s 414 of the Penal Code for
voluntarily disposed of certain properties. At the close of the defence, the magistrate
ordered the charges to be amended by substituting the words “assisted in disposing of”
for the words “disposed” (but the magistrate did not read over and explain the amended
charges to the appellant]. The appellant appealed against his conviction and sentence.
Held : The omission by the magistrate to read and explain the amended charges to the
appellant was an irregularity which was not curable by s 422 of the Criminal Procedure
Code as it was contrary to a statutory requirement. The conviction and sentence of the
appellant must therefore be quashed and a retrial ordered.

Cf Hee Nyuk Fook v PP [1988] 2 MLJ 360

Fact : In this case, the applicant had been charged for cheating by dishonestly inducing one
Wong Won Chong to deliver to the applicant cash of $40,000 for the purchase of a stolen
Mercedes Benz motor car. During the trial in the Sessions Court, the charge was amended
twice. The first amendment made at the close of the prosecution case related to the
particulars of the amount involved, from cash of $40,000 to $37,000. The amended
charge was read over to the applicant but not explained to him. The second amendment
was made after the close of the defence and submissions by the defence counsel and the
prosecution.

The charge was amended to include the words “cash cheque No. 271784 for a sum of
$37,000”. The amended charge was neither read nor explained to the applicant. The
applicant was found guilty, convicted and sentenced. The applicant then refer the
following questions of law of public interest to the Supreme Court: Where a charge is

43
PP v Lee Ah Ha [1989] 1 MLJ 120
Fact: Accused was charged with two charges for possession of firearms and ammunition at a security area. The prosecution’s
evidence showed that the firearms & ammunition were found in plastic bag & purse under the driver’s seat
belonging to & driven by the accused. A prima facie case had been established & the accused was called on to
enter on his defence. The accused however elected to make a written statement from the dock. In effect, the
accused denied knowledge of the firearms & ammunition.
Held : The court having considered the accused’s written statement was of the opinion that his mere denial through the
written statement from the dock had not raised any doubt on the prosecution’s case. Accused was subsequently
convicted & sentenced to death.

49 | Page
 amended during trial, is it mandatory to read and explain the amended charge to an
accused person pursuant to section 158(ii)44 of the Criminal Procedure Code.

If the answer to (a) is in the affirmative, then is the omission to read and and explain the
amended charge to an accused person a mere irregularity which can be cured by recourse
to section 422 of the Criminal Procedure Code.

Held : Whether s 158(ii) is mandatory or directory depends on the facts and circumstances of a
particular case, the purpose and object for which such provision is made, the intention of the
legislature in making the provision and the serious inconvenience or injustice which may result
in treating the provision one way or the other. No hard and fast rule can be laid down merely
from the use of the word shall therein;
: applying the test to the facts and surrounding circumstances of the case, s 158(ii) of the Code in
this case is not imperative but directory. The provisions contained therein only lay down a rule of
procedure and do not relate to the mode of the trial.
: Hence, the nature of the amendment was purely technical and in no way substantial as it has not
rendered the omission to read over and explain the amended charge at the close of the defence a
serious irregularity, so as to vitiate the proceeding or occasion a failure of justice.
- As regards the first amendment, there was no need for the amended charge to be explained
to the applicant after it was read over to him by virtue of s 173(h), (i) and (j) of CPC.
- As regards the second amendment, there was no need to amend the charge at all at the end
of the trial by virtue of s 156 of the Code, since the applicant would not be misled by such
an omission.
- Further, ss 167 and 168 of the Code empower the court to convict an accused person with an
offence other than the offence charged or with an attempt to commit the said offence
without the accused being separately charged.
- If at all there was any necessity, the failure to do so did not amount to an irregularity which
has occasioned a failure of justice and in any way prejudiced the trial by virtue of s 422.

3.2) Section 173(j)

S173 (j)
(i) If the accused pleads guilty to the charge as amended, the plea shall be recorded and he may be
convicted on it and the Court shall pass sentence according to law:

Provided that before a plea of guilty is recorded the Court shall ascertain that the accused
understands the nature a consequences of his plea and intend to admit, without qualification, the
offence alleged against him.

(ii) If the accused does not plead guilty to the charge as amended, the accused shall be called upon to
enter on his defence.
(iii) When the accused is called upon to enter on his defence, he may produce his evidence
and shall be allowed to recall and cross-examine any witness present in the Court or its
precincts:

Provided that if the accused elects to be called as a witness, his evidence shall be taken before
that of other witnesses for the defence:

44
S158: Court may alter or add to charge
(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
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 Provided further that any accused person who elects to be called as a witness may be cross-
examined on behalf of any other accused person.

PP v Mohamed Azmin Ali [2000] 7 CLJ 628

Held : Although s173(i)(iii) uses the mandatory phrase “shall” which superficially suggest that
the court cannot question the purpose of recalling and cross-examining any witness,
authorities suggest that recalling witnesses under section 173(j)(iii) should normally be
allowed unless it is frivolous and vexatious which may include causing the trial to be
adjourned, delay or defeat the ends of justice.

Hassan v PP [1962] MLJ 323

Held : To recall witnesses under section 173(j)(iii) should normally be allowed unless it was
frivolous or vexatious.

Chapter 2: Trial Procedure At The Court For Children (CfC)

1) Introduction
51 | Page
● CfC was established on 1 August 2002 under the Child Act 2001 (Act 611) [‘CA’]
● Prior to that, CfC was known as the Juvenile Court, established in 1947 under the Juvenile Courts Act 1947
[‘JCA’]
● Most of the cases for this section (or Dr Farah’s slides) are cases before the CA came into place.
Nonetheless, they are still applicable today because the provisions relied on by the old cases under the JCA
were identical with the CA.
● CA consolidates and amends the law relating to the care, protection and rehabilitation of children and to
provide for matters connected therewith and incidental thereto.

2) Who is a child?
s.2 CA:“child” -
(a) means a person under the age of 18 years; and
(b) in relation to criminal proceedings, means a person who has attained the age of criminal responsibility as
prescribed in s.82 of the Penal Code.45 *10 years old

Who falls within the ambit of CA?

- Children in need of care and protection (abused, neglected, abandoned, etc)
- Children who come into conflict with the law *focus of the lecture
- Children in need of protection and rehabilitation (those exposed to moral and sexual crimes, e.g. child
prostitution)
- Children beyond control
- Trafficked and abducted children
- All cases involving children, the provisions of CA supersede other statutes that regulate criminal
procedure:

● Generally, the CA shall have jurisdiction in all cases involving children (though, there are exceptions to
this)
PP v The Offender [1998] 4 MLJ 152
Facts : The offender was 14 years 1 month when he was found guilty under s.39A(2) of the DDA 1952
for possession of dangerous drugs. The Sessions Court judge held that s.39A(2) of DDA
overrode the provisions relating to the punishment of juvenile offenders under the JCA. The case
was appealed to the High Court.
Held : s.41(1) of the DDA stated that any Sessions Court or First Class Magistrates’ Court has
jurisdiction to try any offence under DDA. S.41(3) of DDA further provided that any Sessions
Court or First Class Magistrates’ Court “shall have effect notwithstanding any other written law
to the contrary”.
: However, s.39A(2) and s.41(1) of DDA do not override the provisions relating to punishment
under JCA. S.12 of JCA gives optional power to the Juvenile Court to either impose punishments
under s.12(1) or to impose the punishment provided for under other Acts. In this case, due to the
seriousness of the offence, the offender was sent to an approved school.
Re A Juvenile [1990] 3 MLJ 117
Facts : This is a Juvenile Revision called upon by the HC. Pursuant to s.293 of CPC, the magistrate
had himself personally caned the juvenile 8 times in his chambers.
Held : All juvenile cases are dealt with under the provisions of JCA. The JCA doesn’t provide any
power to the magistrate to cane a child offender. Besides, s.12(3) of CJA did not allow words
45
S.82 of Penal Code - Nothing is an offence which is done by a child under ten years of age.
52 | Page
 such as ‘conviction’ and ‘sentence’ to be used. Instead, the words used are ‘finding of guilt’ and
‘order made upon finding of guilt’.
: Since s.293(i)(c) of the CPC deliberately used words like ‘convicted’ and ‘Criminal Court’, it is
clear that the applicability of the provision cannot be extended to juveniles. Should there be such
extension, the words ‘or finding of guilt’ would be inserted after the word ‘convicted’ in s.293 of
CPC and further there there should be an amendment to the JCA to include caning.

3) Establishment/ Constitution of CfC

● s.11(2) of CA :
CfC shall consist of a magistrate who, in the exercise of his functions as a CfC except when making order
under ss.39(4),46 42(4),47 84(3)48 and 86(1)49, as the case may require, shall be assisted by two advisers to be
appointed by the minister from a panel of persons resident in the state.

● s.11(4) of CA – Functions of the advisors

(a) To inform and advise the CfC with respect to any consideration affecting the order made upon a finding
of guilt or other related treatment of any child brought before it; and
(b) If necessary, to advise the parent or guardian of the child.

● However, if the child is tried at the High Court, the requirement of advisors no longer becomes necessary:

PP v Bumi Hemna [1998] 5 MLJ 813

Facts : The accused was a juvenile tried for an offence under s 39B(1)(a) of the Dangerous Drugs Act
1952 punishable upon conviction with the mandatory death sentence. Counsel for the accused

46
S.39(4) - Removal of a child to a place of refuge:
If the Court for Children is satisfied that a child brought before it is in need of protection and rehabilittion, the Court for
Children may order the child to be detained in a place of refuge until—
(a)  an inquiry under section 40 to inquire into the circumstances of the child’s case has been completed; and
(b)  a report of the inquiry has been submitted to the Court for Children by the protector under subsection 40(2).
47
S.42(4): Inquiries and Detention of a child who has been bought or acquired under false pretences:
The Court For Children before whom a child is brought shall order the child to be detained in a place of refuge until—
(a)  an inquiry into the circumstances of the child’s case has been completed; and
(b)  a report of the inquiry has been submitted to the Court For Children by the Protector under subsection (6).
48
S.84(3) - The Court For Children before whom a child is brought shall inquire into the case and unless—
(a)  the charge is one of murder or other grave crime;
(b)  it is necessary in the best interests of the child arrested to remove him from association with any undesirable person; or
(c)  the Court For Children has reason to believe that the release of the child would defeat the ends of justice,

the Court For Children shall release the child on a bond, with or without sureties, for such amount as will, in the opinion of
the Court For Children, secure the attendance of that child upon the hearing of the charge, being executed by his parent or
guardian or other responsible person.
49
S.86(1) - If a child having been arrested and while awaiting trial before a Court For Children is not released under section 84,
the Court For Children before whom the child is brought shall cause him to be detained in a place of detention provided
under this Act until he can be brought before the Court having jurisdiction unless the Court For Children certifies that—
(a)  it is impracticable to do so;
(b)  he is of so unruly or depraved a character that he cannot be safely so detained; or
(c) by reason of his state of health or of his mental or bodily condition it is inadvisable so to detain him.
53 | Page
 invited the court to consider whether the accused should be tried by a judge of the High Court
assisted by two advisers.
Held : The HC may assumed all powers which may be exercisable under the JCA but it does not mean
that a judge of the High Court must be assisted by two advisors. There is no written law that the
trial of a juvenile offender by the HC shall not be heard and disposed of by a single judge. Since
the Juvenile Court cannot try any offences punishable with death, the trial of the juvenile
offender for an offence punishable with death would be heard and disposed of by a single judge
of the HC.

4) Jurisdiction of CfC
● Generally, there are 2 types of jurisdiction of CfC:
i. Criminal – To hear any charge against children below 18 years old
ii. Others – As conferred by any other written law
● However, there are 4 situations/ exceptions where the CfC has no to jurisdiction:

i. s.11(5) CA: A CfC shall have jurisdiction to try all offences except offences punishable with
death.

PP v Kok Wah Kuan [2008] 1 MLJ 1

Held : The child respondent was convicted in the HC for murder punishable under s.302 of the
Penal Code.

Mohd Haikal bin Mohd Khatib Saddaly v PP [2009] 4 MLJ 305

Held : The 8 appellants were the students of Sekolah Menengah Agama Dato’ Klana Petra
Maamor. They were convicted under s.302 read together with s.149 of the Penal Code for the
murder of a student from the same school and sentenced to death.

ii. s.83(3) of CA: When the charge is made against the child after he has attained 18 years old (the
child can be tried at other courts such as the HC)

PP v Mohd Turmizy Mahdzir [2007] 6 MLJ 642

Fact : Both accused were under the age of 18 years old when they committed an offence under
s.39B(1)(a) of the DDA in 2002. However, the charge was only framed against them in 2006
after they had attained 18 years old. The charge was made against them in the HC but the
defence counsel objected, saying that the child should be tried by the CfC.
Held :Pursuant to s.83(3) of CA, the HC held that it was right to be tried by the HC instead of the
CfC. The rationale of S83(3) is to to stress that youth of a person cannot be used as a “cloak
of convenience” in order to selter him or her from accepting proper responsibility for
criminal behavior..

iii. s.83(4) of CA: When the child is jointly charged with an adult (the child can be tried at other courts
and such court may exercise all powers that may be exercised by the CfC and must consider the
probation report.50)

PP v KM (A Child) [2010] 9 CLJ 605

50
The probation report is a report done by a probation officer regarding the behavior of the child. The officer will maybe
ask people who know the child and come out with a report regarding the personality of the child so that the judge can
consider this when passing the sentence.
54 | Page
 Fact : KM was a 14 years old child charged together with an adult for committing kidnapping,
rape and robbery against the same female victim.
Held : The Court exercised its power under S83(4) and held that due to the seriousness of the
offence, the child was not sent to any approved school as this was also not recommended by
the probatino officer. The child was imprisoned, which the court claimed to be the last resort
open to the court.

iv. Where a child is charged with an offence which the provision expressly ousted the jurisdiction of
the CfC:
- for example Firearms (Increased Penalties) Act 1971 (FIPA) or the Dangerous Drugs Act 1952
(DDA))
- These provisions usually will use the phrase “notwithstanding any other written law to the
contrary” to oust the jurisdiction of CfC.

Lim Hang Seoh v PP [1978] 1 MLJ 68

Fact : The appellant was a 14 years old boy.
Held : He was found guilty by the HC of the offence of possession of a pistol and ammunition and
sentenced to death under s.57 of FIPA. Despite the appellant was merely a child, there was
no exception of the offence of FIPA, which is death penalty.

5) Place of sitting and persons who may be present in CfC

● S12 of CA generally provides that the CfC must be separated from other Courts and any trail against the
child must be a closed court proceeding to protect the identity of the child:
s.12 CA
(1) (a) : CfC shall sit either in a different building or room from other Courts
(b) : CfC shall sit on different days from the sittings of the other Courts
(2) : If CfC sits in the same building as the other Courts, the CfC shall have a different entrance and
exit from the other Courts to enable children to be brought to and from the CfC with privacy
(3) : No person shall be present at any sitting of CfC, except: (Closed Court Proceeding)
- Member and officers of the Court
- The children who are parties to the case before the Court, their parents, guardians, advocates
and witnesses, and other persons directly concerned in that case
- Such other responsible persons as may be determined by the Court

The difference of procedures to be taken for child offender can be separated into 3 stages:
1) Pre-trial
2) Trial
3) Post-trial (Sentencing)

5.1) Pre-Trial Procedure – Child Offender

● Generally, the procedures taken for adult offenders in respect of remand order, bail and arrest would
similarly apply to child offenders. However, the paramount consideration has to be the child’s best
interest.
● For instance, if the child is not charged with a serious offence, he shall be released on a bond instead of
being remanded.
● S.85 of CA: Separation of child from adult in police station or Courts -
Appropriate arrangement shall be made

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 (a) To prevent a child from associating with an adult who is charged with an offence when the child
(i) is being detained in a police station; or
(ii) is being conveyed to or from any Court; or
(iii) is waiting before or after attendance in any Court.
(b) if the child is a girl, ensure that she is put under the care of a woman while she is being detained,
conveyed or waiting
(c) to prevent the picture of the child from being recorded in any manner whether on tape, film or any
electronic medium while the child is being
(i) detained in a police station,
(ii) being conveyed to or from any Court or
(iii) waiting before or after attendance in any Court

● S.15 CA: Restrictions on media reporting and publication

(1) Any mass reporting on children regarding
(a) any step taken against a child concerned or purportedly concerned in any criminal act or
omission, be it at pre-trial, trial or post-trial stage;
(b) any child in respect of whom custody is taken under Part V; (Protection and Care)
(c) any child in respect of whom any of the offences specified in the First Schedule has been or is
suspected to have been committed; or
(d) any proceedings under Part VI (rehabilitation)

shall not:
- Reveal the name, address, educational institution, or
- Include any particulars calculated to lead to the identification of any child so concerned either as
being the person against or in respect of whom action is taken or as being a witness to the action

(2) Any picture of the child or any person, place or thing which may lead to the identification of the
child shall not be published in any newspaper, magazine or transmitted through any electronic
medium

(3) The CfC may dispense with the requirements of s.15 to an extent as the Court may deem expedient:
- if the case may satisfy the CfC that it is in the interest of justice to do so; and
- there shall be an application by or with the authority of a Protector (Social Welfare Officer).
(E.g. For cases of missing children and the need to find guardian, applications can be made to CfC
to publish the particulars or picture of the child.)

(4) Violation of (1) and (2) is an offence and shall on conviction be liable to a fine not exceeding
RM10,000 or to imprisonment for a term not exceeding 5 years or both

5.2) Trial Procedure – Child Offender

● Generally, the court procedures in criminal trials for child offenders are same as the trials for adult
offenders, except for a few differences:
1. The proceedings must be explained to the child in the language suitable to his maturity.
2. s.11(2) CA : The Magistrate in CfC must be assisted by 2 court advisors . However, if the child is
tried at HC, it is not necessary to have advisors – PP v Buri Hemna (refer above)

56 | Page
 3. s88(1) 51 : If a child is charged with any offence, the CfC shall require the attendance of the
child’s
parents or guardian at all stages of the proceedings unless the CfC is satisfied that it
would be unreasonable to require such attendance. For e.g the child’s mother is a
single mother and working full time.

Sia Yik Hung v PP [1998] 1 MLJ 450

Facts : A juvenile was found guilty under s.4(b) of the Prevention of Corruption
Act 1961 (PCA). He was ordered to be sent to Sekolah Tunas Bakti Kuching
for 3 years or until he attained the age of 18. One of the grounds of appeal
against the decision of juvenile court was whether the magistrate erred in law
and procedure when he did not seek the views of the child’s father and
grandparents who should have been asked to be present in court when
sentence was passed for the purpose of enquiring whether they were prepared
to look after the welfare of the child.
Held : By virtue of the word ‘shall’ in s.9 of JCA (s88 under CA), it is a
mandatory requirement that the child’s parent or guardian be notified that
they are required to attend the proceedings in juvenile court, unless the parent
or guardian could not be found/ were not residing within a reasonable
distance/ it was unreasonable to require their attendance.
: In this case, the situation did not fall within the exceptions. Hence, the court
held that failure of the juvenile court to satisfy this requirement had caused a
miscarriage of justice and prejudice to the child’s parent or guardian.

4. The CfC is obliged to consider the probation report before deciding on the plight of the child.

Tukiran bin Taib v PP [1955] 1 MLJ 24

Facts : This case is a criminal revision of juvenile court’s decision. The juvenile, 17/18 years
old, was caught red-handed of theft for stealing coconuts and was sentenced to 4 months
imprisonment.
Held : As the accused was at most 18 years old and was a first offender, the child should be
kept out of prison and be sent to approved school. The Magistrate should ascertain the
facts and ask if the accused admitted them.
: Before passing sentence, Magistrate should enquire the background, antecedents and
character of the convicted person, especially for young offender. A probation officer’s
report should always be called for and a Magistrate should not hesitate to adjourn the
case in order to obtain such a report before passing sentence. The proper manner to bring
in such report is to call the probation officer as witness and give the substance of this
report in evidence.52
51
S.88 of CA –
(1) If a child is charged with any offence, the Court For Children shall require the child’s parents or guardian to attend at the Court For
Children before which the case is heard or determined during all the stages of the proceedings, unless the Court For Children is
satisfied that it would be unreasonable to require the attendance of the parents or guardian.
(2) Any parent or guardian of a child who fails to attend the Court For Children when required to do so under subsection (1) commits
an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding
two years or to both.

52
Ong Ah Thoo v Rex [1949] 1 MLJ 36
57 | Page
 5. In cases involving children, the provisions of the CA supersede other statutes that regulate criminal
procedure – PP v The Offender; Re A Juvenile (refer above)

5.3) Post-trial Procedure – Child Offender (Sentencing)

● Section 91 of CA deals with “Powers of Court For Children on proof of offence”

s. 91(1) of CA :
Once a child is found guilty, instead of sentencing a child, the CfC would make a disposal order (from
the least to most punitive order).
(a) admonish and discharge the child;
(b) discharge the child upon his executing bond to be of good behaviour and to comply with such
conditions as may be imposed by the Court;
(c) order the child to be placed in the care of a relative or other fit and proper person –
(i) for such period to be specified by the Court; and
(ii) with such conditions as may be imposed by the Court;
(d) order the child to pay a fine, compensation or costs;
(da) make a community service order *inserted by Child (Amendment) Act 2016
(e) make a probation order under s.98;
(f) order the child to be sent to an approved school or a Henry Gurney School;
(g) order the child, if a male, to be whipped with not more than ten strokes of a light cane *removed by
Child (Amendment) Act 2016
(h) Impose on the child, if he is aged fourteen years and above and the offence is punishable with
imprisonment and subject to subsection 96(2) any term of imprisonment which could be awarded by
a Sessions Court. – However, this is subjected to s.96(2) of CA, where a child aged 14 and above
shall not be ordered to be imprisoned if he can be suitably dealt with in any other way whether by
probation, fine or being sent to a place of detention or an approved school.

▪ Once a child is found guilty, the Court (all courts including the subordinate courts) can only
“sentence” the child according to S91(1) (apart from the punishable sections in CPC) instead of
following the provisions which the offence is committed unless if the contrary is expressly provided.
▪ Orders from (a) – (e) are non-custodial order; Orders from (f) – (h) are custodial orders.
▪ Magistrate has to consider the orders available in ascending order, (a) – (h).
▪ The orders in s.91(1) can only be made ONE at a time. There should not be 2 orders made
simultaneously. For e.g, in the past, whipping cannot be ordered together with imprisonment.

PP v Velory Ak Libong [2005] MLJU 407

Facts : This case concerned a criminal revision of CfC’s decision by HC. The 14 years old
offender was ordered to be sent to Henry Gurney School and to be whipped upon finding

Facts : A 16 years old boy was convicted of stealing 2 tins of petrol.

Held : The Magistrate was well assisted by the report of probation officer with regard to the background of the child. The boy was
orderd to stay in the Boys’ Home to remedy his lack of education. The Magistrate also clarified that the proper method of
bringing in the report of the probation officer is to call the officer as a witness and to give substance of the report as evidence.
58 | Page
 guilty for raping. The issue was to discuss whether the Magistrate in CfC was correct in
making such orders under s.91(1) of CA, ie making 2 orders under S91(1).
Held : Under s91(1), only order can be made and no combinations with other orders under S91(1)
can be made. However, by virtue of the phrase “ in addition to any other powers
exercisable by virtue of this Act” under S91(1), an order made under S91(1) can be
combined with another order made under other provisions of CA.53

PP v MFK [2010] 6 CLJ 95

Facts : The 16 years old rape offender was ordered to be sent to Henry Gurney School and to be
whipped 3 strokes pursuant to s.91(1) of CA.
Held : The HC set aside the punishment ordered by the CfC and agreed with the decision of
Velory Ak Libong that the orders in s.91(1) of CA must be read disjunctively.

● In terms of conviction and sentencing of a child, there is a change in nomenclature:

S.91(2) of CA :
- The words “conviction” and “sentence” shall not be used in relation to a child dealt with by the
Court For Children and
- For juvenile cases, any reference in any written law to a child convicted, a conviction and a
sentence shall, be construed as “a child found guilty”, “a finding of guilt” and “an order made
upon a finding of guilt” respectively.

(This means if a child is found guilty, no order of conviction can be made. Instead, it is known as the
finding of guilt. The CfC cannot ‘sentence’ a child but can make ‘order’ upon the finding of guilt.)

● S.91(3) of CA : (Effect of find of guilt of a child)

A finding of guilt of a child shall be disregarded for the purpose of any written law which –
(a) imposes any disqualification or disability upon a convicted person; or
(b) authorizes or requires the imposition of any such disqualification or disability

(Therefore, the Registrar of Criminals shall not keep a record of the particular of any child upon finding
guilty. )

Govindarajoo v Registrar of Criminals [1974] 1 MLJ 112

Facts : In this case, the child applicant requested for his fingerprints, photographs and all other
negative records of him when he was found guilty in the Juvenile Court from the Registrar but
the Registrar refused.
Held : As the applicant could not be “convicted” but only can be “found guilty” in the Juvenile Court,
the particulars of the applicant were not registrable under the Registration of Criminals
Ordinance 1948.54 Therefore, the particulars should be returned to the applicant.
53
Rationale of the judgement:
The first and foremost rule of construction is the literal rule. If the provision is unambiguous and if in that provision the
legislative intent is clear, there is no need to resort to other rules of construction of the statute.S.91(1) is clear to be read
disjunctively: First, the usage of semi-colon is to co-ordinate 2 independent clauses (Thornton- Legislative Drafting 1970).
Second, some of the clauses in s.91(1) cannot complement each other. Third, the word “any” in s.91(1) reinforces that it
must be read disjunctively. If it is intended for a combination of any two of the punishments in s.91(1), the words “or with
any two of such punishments” would have been used.
54
s.12(3) of JCA and s.91(2) of CA are identical. The first limb directs that the words “conviction” and “sentence” shall not be used in
relation to children; the second limb directs that any reference in any written law to a person convicted, a conviction and a sentence of
a child shall be construed as a finding of guilt. The purpose of JCA was to establish Juvenile Courts and to make provisions for the
“care and protection of children and young persons”. It is to enable young offenders to be treated in a different manner as ordinary
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 ● Besides, if a person was found guilty when he or she was a child, he or she is not required to indicate
such offence committed in the past to the immigration board when travelling overseas.
● Differences Between The Places of Detention (as provided under s91(1)(f))
Details/ Places Approved School Advanced Approved Prison
of Detention School
Name of the Sekolah Tunas Bakti Sekolah Henry Gurney Sekolah Integriti (at various
Detention prison around the country)
Centre
Established Social Welfare Department, Department of Prison, Department of Prison,
Under Ministry of Women, Family Ministry of Home Affairs Ministry of Home Affairs
and Community
Development
Age Group 10 years old and above 14 years old and above 14 years old and above
Education No formal education – Formal education is Formal education is
Provided vocational and religious provided for those who are provided
trainings (but the school interested and also
assists individuals to sit for vocational training
exam)

● Under s.93 CA, the CfC can order the parent or guardian to execute bond IN ADDITION to an order
under S91(1):

S93: Parent or guardian to execute bond

(1) In addition to any of the powers in subsection 91(1), the Court may order the parent or guardian to
execute a bond for the child’s good behaviour with or without security and with one or more of the
following conditions:
(a) The parent or guardian accompanied by the child shall report at regular intervals at the welfare
department or the police station nearest to their residence;
(b) The parent or guardian accompanied by the child shall attend interactive workshops;
(c) If the child is in educational institution, the parent or the guardian shall consult with the teacher
and head master or principal once in a month for the duration of the bond;
(d) If the child is sent to approved school or Henry Gurney School, the parent or guardian shall
visit the child on regular basis to be determined by the Court; or
(e) Any other condition as the Court thinks fit.

(2) If any parent or guardian fails to comply with any of the conditions of the bond in s.93(1),
(a) the parent/ guardian commits an offence and they shall be liable to a fine not exceeding
RM5,000 and
(b) The Court may order the security, if any, to be forfeited and the provisions of CPC on
forfeiture of bonds shall apply in relation to the security.

5.3.1) Appeal Stage

● S.95: Appeal

criminal. In light of the objective of the legislation, the second limb is only an amplification of the first limb and cannot be read so as
to treat or convert a finding of guilt by the Juvenile Court as a conviction for the purpose of the Registration of Criminals Ordinance
1948.
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 (1) PP/ any child/ his parent/ guardian, if aggrieved by the decision of CfC may appeal to HC in
accordance with the provisions of CPC relating to criminal appeals to HC from Magistrate’s
Court.

(2) No appeal shall operate as a stay of execution but the Court For Children may stay execution on
any judgment or order pending appeal, on such terms as to security for the payment of any
money or the performance or non-performance of any act or the suffering of any punishment
ordered by or in such judgment or order as the Court For Children may deem reasonable, except
for the case of whipping where its the execution shall be stayed pending appeal,

(3) the HC shall make its final decision within 12 months after the notice of appeal has been filed.

5.3.2) Death Sentence

S.97: Death
(1) Death sentence shall not be pronounced if the offence was committed by the offender when he was a
child.
(2) Alternatively, the Court shall order the child to be detained in prison during the pleasure of
(a) YDPA (if the crime was committed in KL/ Labuan) or
(b) the Ruler/ Yang di-Pertua Negeri (for other states).
(3) If the Court makes an order under subsection (2), that person shall
(a) be liable to be detained in such prison and under such conditions as the Rulers may direct.
(b) while so detained, be deemed to be in lawful custody
(4) The Board of Visiting Justices for that prison shall review the person at least once a year and may
recommend to the YDPA/ the Ruler/ the Yang di-Pertua Negeri on the early release/ further
detention of that person.

Koh Wah Kuan v PP [2008] 1 MLJ 1

Facts : The child was found guilty of murder and was detained under the pleasure of YDPA. The
COA decided that s.97(2) of CA was unconstitutional as it contravened the doctrine of
separation of power, where the YDPA/ the Ruler/ the Yang di-Pertua Negeri interfered
with the sentencing power of judiciary. The PP appealed to the FC.
Held : s.97(2) of CA is constitutional. The doctrine of separation of power in Malaysia is not
definite and absolute. The extent of power of the court depends on what is provided in the
Constitution. Article 121(1) of the FC states that the HC “shall have such jurisdiction and
powers as may be conferred by or under federal law”. Here, the federal law clearly
provides that a child shall be ordered to be detained in a prison during the pleasure of the
YDPA/ the Ruler/ the Yang di-Pertua Negeri. That is the sentencing power of the Court
given by the federal law, which is in accordance with the FC.

6) Court and Alternative Procedures

● Despite the CA provides different procedures as compared to an adult trial to protect children, the Act is
inadequately implemented.
● The Act is inapplicable to all children if they are jointly charged with adult.
● In practice, many states have limited facilities to comply with the requirements under the CA.

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● For instance, there is lack of respect for child’s privacy (s.15 of CA). Besides, not every courtroom in
Malaysia is equipped with video link facility. 55 With such absence, children have to sit in the same
courtroom as the accused.
● Accordingly, there is a serious need to consider alternative measures to avoid contact with the legal system
altogether.

Chapter 3: HIGH COURT TRIALS

1) Introduction

55
https://www.thestar.com.my/news/nation/2018/10/14/all-tangled-up-in-court-more-protection-should-be-given-to-children-caught-
in-court-cases-be-they-vi
62 | Page
● Procedures for trials in HC are generally the same with Session Court ad Magistrate’s Court save for some
differences.
● In HC, procedures are to be observed even more stringently owing to the higher sentencing powers
possessed by the High Court
● Unlike in the subordinate courts, there is a positive duty on the Public Prosecutor to make an opening
statement by stating briefly the nature of the offence charged and the evidence by which the prosecution
proposes to prove the guilty of the accused.
● The procedure for reading and explaining a charge, making a plea, withdrawal of a plea of guilty, and
recording and accepting a plea of guilty is similar to that stated under section 173(a) and section 173 (b).
● The rules governing trials in HC are governed by Chapter XX of CPC (s178-183A).

2) Section 178 - Commencement of trial

S178 : Commencement of trial

(1) When the Court is ready to commence the trial, 56 the accused shall appear and be brought before it and
the charge shall be read and explained to him and he shall be asked whether he is guilty of the
offence charged or claims to be tried.

(2) If the accused pleads guilty, the plea shall be recorded, and he may be convicted on it:

Provided that before a plea of guilty is recorded, the Court shall ascertain that the accused understands
the nature and consequences of his plea and intends to admit, without qualification, the offence
alleged against him

*this is in para material with section 173 para (b). Especially in capital cases, it is insufficient for the
judge to mere state/record that the accused understands the nature and consequences of his plea of guilt.

(3) If the accused refuses to plead or does not plead, or if he claims to be tried, the Court shall proceed to try
the case.

● This case explained the purpose of trial. The CA elaborated on the criminal justice process.

Bunya anak Jalong v PP [2015] 5 CLJ 893

Held : If the accused pleads not guilty to the charges against him, a trial is held. The purpose of the
trial is to:
- enable the trial court to see and hear the evidence relied upon by the prosecution
- see and hear that evidence produced by PP being tested in cross-examination by the
accused;
- at the end of the PP’s case, to conduct a maximum evaluation of the PP’s evidence &
witness to decide whether the prosecution had made out a prima facie case, and if so, to call
the accused to enter upon his defence; and
- at the end of the defence case, to conduct a maximum evaluation upon the whole of the
evidence to decide whether the prosecution had proved its case beyond reasonable doubt. (In
simple language, it means whether at the end of the defence case, the defence had succeeded
to raise a reasonable doubt in the prima facie case made out by the prosecution at the end of
this case.)

56
“Commencement” here means commencement of actual trial and not the date when the accused first appears in court
63 | Page
● The charge only needs to be read and explained at the commencement of trial and not on dates of
subsequent trials

Rasahiman bin Rasul v PP [2011] 4 MLJ 295

Held : Under s178, the court only has to read and explained the charge to the accused at the
commencement of the trial. It doesn’t have to read and explain the same charge on other dates of
further trials.

● There must be some indication on record to show that the accused actually knows the nature of his plea of
guilty to the charge and the consequences of his plea including that there will be no trial and death sentence
may be imposed on him even though such sentence is not mandatory.

Lee Weng Tuck v PP [1989] 2 MLJ 143

Facts : P were jointly charged with one X for trafficking in dangerous drugs in furtherance of a
common intention. P had earlier pleaded not guilty but had subsequently changed their plea to
one of guilty.
: Later, P through their counsel informed the court that they wished to retract their plea of guilty
on the grounds, inter alia, that Pl did not understand the charge when read to him and that P2
wanted to proceed with the trial because he was surprised by the statement of facts tendered by
the deputy public prosecutor. The trial judge refused to permit them to change their plea.
: At the conclusion of the trial, P were convicted and sentenced to death. Hence, the present
appeal by P against the refusal of the trial judge to permit the withdrawal of their plea of guilty.

Held : Appeal allowed.

: It is settled law that an accused person can retract a plea of guilty at any time before the case is
finally disposed of by sentence. This applies even to capital cases. The judge when entertaining
this application, must however exercise his power judicially and on valid grounds;
: However, when the accused wished to change his plea of guilty for reasons which gave rise to a
reasonable doubt as to the validity or unequivocality of the guilty plea due to a failure to take the
proper safeguards, then the court has no discretion but to permit the accused to retract his plea;
: In the instant case, there was a breach of proper safeguards when the plea of guilty of P was
accepted. There were grave doubts that P understood the nature and consequences of their plea.
Equally, there were grave doubts that P intended to admit without qualification the offence
alleged against them. In the circumstances, P ought to have been allowed to change their plea of
guilty to their original claim to be tried;
: Hence, the appeal is allowed and the court ordered a retrial against P before another judge.

3) Section 179 - Opening case for prosecution

Section 179 - Opening case for prosecution

(1) The officer conducting the prosecution shall open his case by stating shortly the nature of the offence
charged and the evidence by which he proposes to prove the guilt of the accused. (aka the opening
statement)
(2) He shall then examine his witnesses, who may in turn be cross-examined for the defence and, if necessary,
re-examined

● Section 179(1) makes it compulsory for the prosecution to open its case by stating shortly two matters:
i) The nature of the offence charged and
ii) The evidence by which he proposes to prove the guilt of the accused

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 **In contrast, in summary trials, the PP doesn’t have to state his nature of offence but only the evidence to
prove his case.

● Under Section 179(2), upon completion of the opening speech, the PP will proceed to call & examine his
witnesses which is called ‘examination-in-chief’. The Purpose is to elicit from a witness all material facts
within his personal knowledge to prove the case of the party that calls him.57

3.1) Opening Statement / Speech (OS)

● Opening statement is not evidence. It doesn’t have to show all the facts/ evidence needed. Hence, it is
not fatal to the PP’s case for not mentioning all evidences in the OS, EXCEPT if such omission is
prejudicial to the justice as provided by S422.

Timhar Jimdani Ong v PP [2010] 3 CLJ 938

Facts :The appellants were charged and convicted for trafficking in a dangerous drug. The trial court
convicted the appellants based on inter alia, the incriminating words uttered by the 2nd appellant
upon the discovery of the drugs by the police ("they have found the thing") and the attempt by
both the appellants to bribe the police into not arresting them. The appellants appealed and
contended that:
- the prosecution had not, in its opening statement, adverted to either the incriminating words
allegedly uttered by the 2nd appellant or the alleged attempt by the appellants to bribe the
police. Nor were these alleged facts recorded in the police report lodged by the arresting
officer. It was, therefore, submitted that the subsequent narration/evidence of the police-
witnesses in respect thereof was a recent invention and fabrication; and
Held :The prosecution's opening statement is an important procedural step where it introduces its case
and narrates the story to the jury. However, in a criminal trial which is presided over by a single
judge as trier of both fact and law, the opening statement does not have the same importance.

: The trial judge does not need this 'curtain raiser' for the prosecution to lay out a detailed
roadmap of its case. Section 179 of the CPC only requires the prosecution to satisfy the court that
the charge against the accused is not frivolous and that there is some material for proceeding
against him. The details of the evidence are not expected to be produced via the opening
statement. In most cases, the charge itself is a sufficient overview of the evidence that needs
to be adduced.
57
Aims of cross examination: (Mallal’s Criminal Procedure)
1. To destroy the material parts of the EIC;
2. To weaken the evidence, where it cannot be destroyed;
3. To elicit new evidence, helpful to the party cross-examining; and
4. To undermine the witness, or shake his credit, as it is commonly expressed, by showing that he cannot be trusted to speak the
truth, or that he is deposing to matters of which he has no real knowledge

PP v Wong Yen Sen [1990] 1 MLJ 187

Held: Powers of a cross-examiner:
1. To ask leading questions
2. To test a witness for making a previous inconsistent statement
3. To shake the credit of a witness by injuring his character

Re-examination may be done in turn by the Public Prosecutor. Purposes:

- To explain or qualify admissions made by the witness when cross-examined.
- To countervail the damaging effects of cross-examination
- New issues CANNOT be introduced without permission of the court. If done, it may be cross-examined by the defence
- No cross means, no re-examination

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 : There is no necessity for the prosecution to tender a copy of its opening statement to be marked
by the court to be admitted as evidence, nor is there even a need for the statement to be in
writing. Consequently, the prosecution's omission from its opening statement, vis-a-vis the
incriminating words allegedly uttered by the 2nd appellant and the alleged attempt by the
appellants to bribe the police, was immaterial and not fatal to its case.

: Therefore, omission to mention certain facts in the opening statement would not misled the
court as the PP would still have to adduce all his evidence after the opening statement.

PP v Saari Jusoh [2007] 2 CLJ 197

Facts :The accused was charged and convicted for trafficking in dangerous drugs based on the
presumptions contained in ss 37(d)and 37(da) of the Act. One of the issue was whether the the
presumption of trafficking could stand as the OS didn’t contain any facts which supported
the “presumptions”.
Held : A verdict can be founded on a basis not indicated by the prosecution in its OS. But it must be
done in such a way so as not to place the accused at a tactical disadvantage with resultant
unfairness to him. This conclusion is consistent with s 422 of the CPC.

PP v Daniel Ionel Turcan [2017] 11 MLJ 769

Facts :The accused was charged an drug offence and was convicted on a ground not included in the
OS. The defence contended that since the opening statement only showed that the accused
brought one luggage bag and did not mention another, such omission is fatal to the case.
Held : Such omission in the opening statement would not cause any prejudicial effect against the
accused as this court is not bound by the opening statement to find any verdict. There was
nothing significant or bad faith or improper motive on the part of the prosecution in failing to
mention the existence of another bag in the opening statement as it had no significance to the
overall evidence

Similar judgment58

● However, some cases seems to have different position by ruling that the PP should include all
evidences in the OS (which should not be followed, according to Sri Murugan’s book)

PP v Norfaizal59

58
Sureeya Wutthisat v PP [2013] 1 MLJ 214
Fact : The appellants were sentenced to death for drug trafficking based on the opening statement of the PP.
Held : In his grounds of judgment, the trial judge referred to the charge against the appellants and the witnesses called
by both parties. Thereafter the trial judge explained the facts of the case. This was an error.
: The opening speech provided under s 179 of the Criminal Procedure Code was not evidence. The facts of the
case were not proved by the opening speech. The trial judge also had not provided the reasons as to why he had
concluded that a prima facie case was made out. Also there was nothing in the grounds of judgment to show why
he had made affirmative findings of possession. This was an error on the part of the trial judge. The error made by
the trial judge under the first ground itself warranted the appellants to be acquitted and discharged

Ong Teng For v PP [2013] 1 CLJ 39 (CA)

Held : The word “shall” appearing in S179 is predicated by the word “propose” which in its dictionary meaning is to
“offer or put forward of suggest”. Since the section relates to the evidence which is to be offered or put forward or
suggested the regulation of the nature thereof is reposed to the officer conducting the prosecution and hence in
that context section 179(1) of the CPC cannot be said to be imperative or mandatory but directory.
59
[2003] 8 CLJ 581
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 Facts : The accused was charged with trafficking drug. The prosecution sought to adduce evidence of a
cautioned statement in writing purportedly made by the accused to a Chief Inspector. The
defence objected to the admissibility of the cautioned statement, contending that the cautioned
statement was an afterthought as the prosecution did not include it in the opening statement.

Held :Section 179(1) of the CPC provides that it is mandatory and it is incumbent upon the
prosecution to open the case by stating the proposed evidence to prove the guilt of the accused.
: In this case, the prosecution’s opening speech had failed to mention any written admission as
purportedly contained in the cautioned statement. In this circumstances, it was an afterthought as
the prosecution had never sought to adduce any evidence pertained to the cautioned statement.
: The prosecution’s failure to comply with the mandatory provision was held to be fatal to the
admissibility of the cautioned statement.

PP v Resty Agpalo [2010] MLJU 1619

Held : The opening address of the prosecution is relevant, as it will act as a guide for the prosecution,
and it enables the court to react accordingly. On opening statement is important as s. 179 (1) of
the CPC demands that the officer conducting the prosecution shall open his case by stating
shortly the nature of the offence charged and the evidence by which he proposes to prove the
guilt of the accused.60
: Even though a verdict may be founded on a basis not indicated in the opening speech, the DPPs
should ensure that much consideration be given to any opening speech in order to avoid any
accusation of any tactical disadvantage to the accused that may occasion a failure of justice.
: In this case, during the hearing, things did not go the way as mentioned in the opening speech,
as an important witness (one Mohd Razbean Mohd Tab) failed to turn up. Without this Razbean,
and without any direct evidence adduced to establish the case, the prosecution's case weakened
tremendously. What was left, in order to establish a prima facie case fell totally on circumstantial
evidence.

4) Section 180 - Procedure after conclusion of case for prosecution

Section 180 Procedure after conclusion of case for prosecution (Similar to s173(f) & h)
(1) When the case for the prosecution is concluded, the Court shall consider whether the prosecution has made
out a prima facie case against the accused.
(2) If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court
shall record an order of acquittal.
(3) If the Court finds that a prima facie case has been made out against the accused on the offence charged the
Court shall call upon the accused to enter on his defence.
(4) For the purpose of this section, a prima facie case is made out against the accused where the prosecution has
adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would
warrant a conviction.

PP v Mohd Noor bin Shafie [2016] 12 MLJ 234

Facts : The accused, Mohd Noor bin Shafie, was charged for drug trafficking.
Held : After subjecting all the evidence adduced to a maximum evaluation, the prosecution had failed
to establish a prima facie case. The accused was acquitted and discharged without calling for his
defence, as the heroin was accessible to many persons in the house who were not called as
witness to testify that the drug belong to the accused.

PP v Soha Beta [2017] 8 MLJ 1

60
PP v Norfaizal [2003] 8 CLJ 581; PP v Saari Jusoh [2007] 2 MLJ 409
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 Facts : Both the accused persons were charged for an offence of murder of a baby. The doctor who did
the post-mortem found that the cause of death of the baby was asphyxia. The prosecution in the
submission stated that the baby had died due to asphyxia and that it was the accused who had
killed the baby by burying it alive. However, both accused in their defence had submitted the
baby was already dead when it was buried.
Held : The prosecution had not proven ingredient that both accused person in furtherance of their
common intention had asphyxiated their own new born baby by burying him alive. Based on the
evidence, the baby was already dead when he was brought by the two persons to be buried at the
burial site. So, there existed a reasonable doubt in the prosecution’s case. So, a prima facie case
had not been established and the accused was discharged.

Ahmad Najib bin Aris v PP [2009] 2 MLJ 613

Facts : The appellant was convicted of rape and murder. The appellant kept silent throughout the trial.
Hence the issue was could the court convict the accused when he chose to remain silent after a
prima facie case was established by the prosecution.
Held : In the instant case, the PP made out a prima facie case. Hence, although the accused remained
silent, the Court can still convict him as the prima facie case has been proven. The accused
person's right to remain silent is not infringed by the principle of 'if unrebutted would warrant a
conviction'. In the instant case, since the appellant remain silent can failed to call other witnesses
to rebut the prosecution's case, the court has no other alternative but to convict him.

Not important cases: 61

5) Section 181 – Defence

Section 181 - Defence
(1) When the accused is called upon to enter on his defence, he or his advocate may then open his case, stating
the facts or law on which he intends to rely and making such comments as he thinks necessary on the
prosecution’s evidence. He may then examine his witnesses, and after their cross-examination and re-
examination, may sum up his case:

Provided always that if any accused person elects to be called as a witness, his evidence shall be taken
before that of other witnesses for the defence:

61
Mardani bin Hussain v PP [2011] 4 MLJ 83
Facts: The appellant was cahrged for some drug-related offences. When he was arrested, he did not disclose his defence but only did
so during trial. The trial court convicted him and held that as he did not disclose the defence to the police at the time of his
arrest, it was too late for him to raise his defence at the trial. The appellant appealed.
Held : This was a serious misdirection in law and a serious misdirection that has gravely prejudiced the appellant and occasioned a
substantial miscarriage of justice. Every evidence that can rebut the PP’s case ought to be considered.

Jee Chai Foo v PP [2015] 2 MLJ 695

Facts : The appellant was convicted for the offence of murdering and sentenced to death. The appellant appealed on the ground that
the judge had erred in accepting the PP’s witnesses’ testimonies at face value without any evaluation. 

Held : The judge had a duty to consider the evidence in its entirety, including the evidence of the prosecution which favoured the
appellant. It was the duty of the judge to consider that defence, no matter how weak it may be. This was a serious non-
direction which amounted to a misdirection, warranting appellate intervention.
: The judge misdirected himself in that he overlooked and failed to appreciate the importance of this issue as it could
consequently raise a reasonable doubt on the prosecution's case.
: The conviction and the death sentence was quashed and substituted with a lesser offence of culpable homicide not
amounting to murder under s 304(b) of the PC.

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 Provided also that any accused person who elects to be called as a witness may be cross-examined on behalf
of any other accused person.

(2) The accused shall be allowed to examine any witness not previously named by him under the provisions of
this Code if that witness is in attendance.

● Under S181, the accused “may” open his case… when he is called into defence but the Court can make the
judgment before hearing the defence’s submissions. The court has the discretion to hear the counsel’s
submission: (caution: this is really a WTF decision)

Diana Nelson Tanoja v PP [2010] 3 CLJ 1

Facts : The appellant was charged and convicted for some drug offence. However, it was found that
the written judgment was dated 18 January 2005, which was the same day Diana entered her
defence. The parties only made their submissions on 26 January 2005 after which the judge gave
decision immediately after. This means that the trial judge had prejudged the issue even
before hearing submissions of defence counsel and the PP. The accused appealed on this
ground.
Held : The Federal Court held that as S181 uses the words “may”, it indicates the discretion of court to
hear the parties submission. This means that the judge could decide the case without having the
need to hear submission from defence counsel and PP. (the FC further held that the date of the
trail court judgment was merely typo without giving any reasons)

● As opposed to the above decision, the FD has an earlier case that seems to contradict Diana but was not
overruled:

Lee Kwan Woh v PP [2009] 5 CLJ 631

Held : The constitution guarantee the accused’s right to fair trail which includes his right to make a
submission of no case at the close of the prosecution’s case. It is a right that the accused may
waive but he or she cannot be deprived of it.

6) Section 182A – Procedure at the conclusion of the trial

Section 182A Procedure at the conclusion of the trial (Similar to section 173(m)(i),(ii) and (iii))
(1) At the conclusion of the trial, the Court shall consider all the evidence adduced before it and shall decide
whether the prosecution has proved its case beyond reasonable doubt.
(2) If the Court finds that the prosecution has proved its case beyond reasonable doubt, the Court shall find the
accused guilty and he may be convicted on it.
(3) If the Court finds that the prosecution has not proved its case beyond reasonable doubt, the Court shall
record an order of acquittal

● Same as summary trial, before the court makes a decision, all evidences have to be looked at its totality.
Oh Cheng Eng v PP [2015] 3 MLJ 702
Facts : The appellant was convicted for drug trafficking, hence the appealed. Hence, the issues were
whether the appellant raised a reasonable doubt.
Held :The trial judge had considered all the evidence as required under s 182A of the Criminal
Procedure Code before coming to the conclusion that the appellant had failed to cast a reasonable
doubt on the prosecution's case. There was no error in the finding of the trial judge. Looking at
the totality of the evidence, the conviction of the appellant was safe 
: Appeal was dismissed and conviction is affirmed.

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 Nguyen Quoc Viet v PP [2016] 2 MLJ 106
Facts : The appellant together with other 12 employees stayed under the same house. One day, one of
them died with a knife was recovered near the deceased’s body. The pathologist who conducted
the post-mortem and concluded that the deceased died due to a stab wound to the heart that was
not self-inflicted. The appellant was charged with the murder of the deceased.
: The accused denied liability saying that he had no knowledge as to what had happened to the
deceased later as he was in the toilet at the material time. The appellant went on to say that when
he had come out of the toilet he had found the deceased sprawled on the floor covered in blood
and that he had carried him and placed him on a mattress which was when the deceased’s
bloodied hand and shoulders had come into contact with his t-shirt. He also explained that he had
gone to Klinik Lee Surgery to ask for emergency medical aid, when he was detained by the
police.
: The trial judge held that the all these are mere denial and convicted him. Hence, the appeal.
Held : It was apparent that the trial judge had not considered all the evidence adduced before him to
conclude that the prosecution had proven its case beyond reasonable doubt against the appellant.
This was in clear breach of s 182(A)(1) of COC which required the court to consider all the
evidence before it at the conclusion of the trial and to decide whether the prosecution had
proved its case beyond reasonable doubt.
: This was the obligatory responsibility of the trial judge. However, in the present case the trial
judge had not conducted an exercise to re-evaluate the appellant’s unsworn statement in the light
of the evidence adduced by the prosecution. The breach of s 182(A)(1) of the CPC verily
amounted to a serious misdirection.
: Hence, appeal allowed and the appellant was discharged and acquitted of the offence.

PP v Ragunathan a/l Rajoo [2016] 8 MLJ 826

Facts : The accused was convicted for drug trafficking. The prosecution’s evidence against the accused
rested largely on the testimonies of two police officers, SP2 and SP6. Finding that the
prosecution had established a prima facie case, the court called upon the accused to enter his
defence.
: In his testimony, the accused denied ever meeting with SP2 prior to his arrest. He said the car
from which the drugs were seized was rented to Boy and the documents pertaining to the rental
were seized by police from his apartment following his arrest. The accused said Boy had wanted
to rent the car for a month but changed his mind and wanted to return it earlier and get a refund
of his deposit.
: The accused said he refused to refund the deposit and it was then decided that Boy would leave
the car at a car park for the accused to collect it but when the accused approached the car he was
arrested by police. The accused said he did not know of the drugs in the car and that the car
rental documents the police seized from his apartment were never returned to him nor produced
at the trial.
Held : The prosecution failed to prove the charges against the accused beyond reasonable doubt.
Accordingly, pursuant to s 182A(ii) of the Criminal Procedure Code, the accused was acquitted
and discharged.
: Although the prosecution could choose to call any witnesses it wanted, it could not ignore
its burden to prove the charge against the accused beyond reasonable doubt.
: Accused was discharged and acquitted.

Unimportant cases (these cases are merely descriptive which you can really skip)62
62
PP v Eswaran a/l Susop [2013] 1 LNS 1066 CA, [2017] 1 LNS 269 FC
Facts: Two appeals before the court. The appeals were directed against the decision of the High Court dated 22.10.2013. The
appellants were each charged with one count of offence under section 39B(1)(a) of the Dangerous Drugs Act 1952
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6) Section 183 - Sentence
Section 183 : Sentence
If the accused is convicted, the Court shall pass sentence according to law

● “pass sentence according to law” means that the sentence imposed must not only be within the ambit of the
punishable section but it must be assessed and passed in accordance with established judicial principles.
● For sentences such as a fine, imprisonment or whipping, the court must take care in ensuring that the all
aggravating and mitigating circumstances in favour of the accused are judiciously and meticulously
considered

Held :Appeals were dismissed and the decision of the High Court was affirmed. The conviction entered against each appellant was
safe and amply supported by the evidence on record. The High Court Judge had considered the defence case in its entirety
and from all angles before His Lordships decided that the defence had not raised a reasonable doubt in the prosecution’s case.

Mukhlis M Nur v PP [2015] 2 MLJ 55

Facts : The accused was convicted for drug trafficking and he appealed.
Held : The trial judge's grounds must be read as a whole and not separately. It was clear that the trial judge, in deciding whether
the prosecution had successfully established his case without reasonable doubt, had given consideration and taken into
account the whole evidence adduced by the prosecution and the defence. In relation to this, the trial judge had considered the
evidence adduced by the prosecution and defence, together. The trial judge's ground of judgments could not be read 'by
dissecting them into small pieces and examining each piece in isolation' or using the 'cherry-picking' approach, but they must
be analysed as a whole.
: When the trial judge held that the defence failed to raise reasonable doubt on the prosecution's case, this only brought one
meaning which was that the prosecution had successfully established its case beyond reasonable doubt. On the facts, the trial
judge had held that the prosecution had proved its case beyond reasonable doubt. The trial judge's failure to state the
powerful phrase that the prosecution had successfully proved its case beyond reasonable doubt in the circumstances of this
case, was not a direction or in contravention with the provisions under s 182A(2) of the CPC
: Appeal dismissed and sentenced affirmed.

Songsil Udtoom v PP [2016] 1 MLJ 41

Facts : Acting on information received a police team raided a hotel room in the Pyramid Tower Hotel. When the police team
managed to gain entry into the hotel room, the first and third appellants had reached for a pistol, but the police officers from
the raiding team had managed to subdue and detain them.
: The other two appellants, namely the second and fourth appellants, who were also occupying the same hotel room were also
detained. The hotel room occupied by the four appellants, who were all Thai nationals, was searched and the police team
recovered six firearms of various types and 336 pieces of bullets of various types.
: The four appellants were arrested and charged with unlawful possession of six firearms (the first charge) and 336 pieces of
bullets (the second charge). 
: The trial judge found that the defence had failed to raise any reasonable doubt on the prosecution’s case and that the four
appellants were in unlawful custody and possession of two of the firearms and of 129 bullets found. As such, the four
appellants were convicted of both the charges and sentenced to death. Hence the present appeal against the convictions and
sentences.
Held : Having perused the evidence it was clear that the prosecution had failed to prove that each and every appellant was in
possession of the firearms and bullets specified in the charges apart from showing that all the four appellants slept in the
same room and were arrested in the same room where the firearms and bullets were recovered.
: However, the factum of sleeping together in the same room and getting arrested together in the same room did not indicate
which one of the four or that all four of them had the care and management of the hotel room, as there was no evidence that
they were acting in concert with each other.
: The prosecution evidence showed that two of the six firearms were discovered next to the first and third appellants, while
the four other firearms were recovered from a bag. However, the prosecution had failed to show who had committed the
offence in respect of each of the firearms.
: The prosecution also failed to prove exactly what part was played by each of the four appellants and also failed to
distinguish the individual acts of each of the appellants in the commission of the offence. Further, since they were not
charged under s 34 of the Penal Code, none of the appellants would be liable for the act of unlawful possession of the
firearms and bullets as if the act were done by him alone
: The prosecution had failed to establish that the appellants had some knowledge that an act had been committed which was
consistent with the furtherance of the common intention or would be in furtherance of the common intention.
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● Where an accused is found guilty for an offence punishable with death, the existence of any mitigating
circumstances makes no impact or difference as trial judges in Malaysia have no discretion in sentences
involving death
● All offences which carry a death sentence in Malaysia are mandatory, and upon recording a conviction, the
trial judge must sentence the accused to death

PP v Jafa bin Daud [1981] 1 MLJ 315

Facts : The respondent was charged for possessing drugs. He pleaded guilty to the charge and was
accordingly convicted. The Public Prosecutor appealed against the sentence and argued that the
sentence was grossly inadequate on the ground that the magistrate had failed to appreciate the

: Neither had the prosecution established that there was a pre-arranged plan to commit the criminal act of having unlawful
possession of the firearms and bullets and that the said act was done in concert to that pre-arranged plan
: Appeal allowed.

PP v Shalima Bi [2016] 1 MLJ 799

Facts : The respondent, who was the second wife of a Muslim man (‘Kassim’), was charged in the High Court with murdering
Kassim’s first wife (‘the deceased’) by pouring hot oil over her.
: Relying heavily upon the forensic psychiatrist’s (SD2) evidence and the respondent’s at-times bizarre behaviour in court
during the trial, the trial judge ruled that due to unsoundness of mind the respondent did not know that her act of pouring the
hot oil on the deceased was wrong.
: He upheld the defence of insanity, acquitted and discharged the respondent of the charge and ordered her to be detained in
hospital for treatment. In the instant appeal against the decision, the prosecution argued that the trial court was wrong to hold
that the respondent was legally insane at the time she committed the crime.
Held : The trial judge failed to consider all the relevant and material evidence and his finding, based on SD2’s oral evidence and
report, that at the time the respondent poured the hot oil on the deceased she did not know the consequences of her act, was
grossly against the weight of the evidence.
: The trial judge accepted SD2’s evidence without question and without testing it against any of the evidence led by the
prosecution.
: In short, he failed to comply with the requirements of s 182A(1) of the Criminal Procedure Code. He failed to appreciate
that it was for him, and not for SD2 or any other medical expert no matter how eminent, to determine whether the respondent
was insane at the time she committed the act. SD2’s role was merely to assist the court in arriving at a decision and no more
: The trial judge failed to test SD2’s opinion evidence against SP2’s factual evidence. The strands of circumstantial evidence
in SP2’s testimony clearly and undoubtedly showed motive and intention on the respondent’s part, thus negating her defence
of insanity. The trial judge was duty-bound to have considered these strands of circumstantial evidence before accepting
SD2’s opinion wholesale.
: The trial judge erred in law when he considered the respondent’s behaviour in court during the trial as proof that she was
insane. What he had to determine was whether she was insane at the time she committed the act. How she behaved or
conducted herself in court during trial or at any other time had nothing to do with that question. The respondent was certified
fit to stand trial. The record did not show she had created any scene while giving evidence. She testified without any
difficulty and answered questions intelligently. Neither did she behave abnormally throughout the proceedings in this appeal 
: Appeal allowed and she was sentenced to death.

Ahmad Azhari bin Ahmad Zaini v PP [2015] 3 MLJ 435

Facts : The appellants were convicted for drug trafficking (cannabis). The appellants denied any knowledge of the cannabis and
argued that before they were arrested at the boot of the Mercedes, they were looking for a car-jack. The appellants appealed
against the conviction and submitted that there was no prima facie case of trafficking and the trial judge failed to appreciate
the defence.
Held : Based on the evidence, the prosecution had failed to prove the charges against the appellants beyond reasonable doubt as it
was not proven that the appellants were the owner of the Mercedes; there was no evidence as to how long the first appellant
had been driving the Mercedes; no evidence was adduced as to who had access to the Mercedes prior to the arrest of the
appellants; and that there was physical contact between both the appellants and the two bags containing the cannabis in the
boot of the Mercedes.
: Hence, appeal was allowed and the appellants have to be acquitted under S182A(3).

Kamran Nemati Hossein v PP [2015] 4 CLJ 595; [2015] 3 MLJ 636

Facts :The appellants were convicted for some drug offence and were convicted and the appealed.
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 seriousness of the offence and had also failed to consider that the respondent had five previous
convictions, two of which were connected with drugs.
Held : A "sentence according to law" means that the sentence must not only be within the ambit of the
punishable section, but it must also be assessed and passed in accordance with established
judicial principles.
: In assessing sentence, one of the main factors to be considered is whether the convicted person
is a first offender. It is for this purpose that before passing sentence, a Magistrate is required to
call for evidence or information regarding the background, antecedent and character of the
accused.
: Where the convicted person has previous records and admits them as correct, the court must
consider whether the offence or offences committed previously were of similar nature as the one
with which he is presently charged.
: The court must then consider the sentences imposed in the previous convictions for similar
offences to determine whether they have had any deterrent effect on him. Where he is found to
be a persistent offender for a similar type of offences, then it is in the interest of justice that a
deterrent sentence should be passed and, in such a case, unless there are exceptional
circumstances, the quantity, nature or value of the subject-matter of the offence with which he is
currently charged can very rarely constitute a mitigating factor.
: The Magistrate failed to take into account that in the two previous convictions for opium
offences, the respondent had been sentenced to one year imprisonment in April 1977 and six
months' imprisonment in October 1979. The Magistrate had misdirected herself on the fact and
the law, and the sentence of eight months' imprisonment was manifestly wrong and inadequate as
a deterrent for the accused as well as for would-be offenders.
: In the circumstances the appeal should be allowed and sentence enhanced from eight month's
imprisonment to eighteen months' imprisonment to take effect from date of arrest.

Re Chang Cheng Hoe [1966] 2 MLJ 252

Facts : The defendants had been charged for an offence under section 12 of the Merchandise Marks
Ordinance. At the hearing, counsel for defendants informed the court that the three defendants
were agreeable to compounding the case under section 30 of the Ordinance, on certain terms,
which included that the defendants should plead guilty and that the prosecution should not press
for a deterrent sentence. Accordingly the defendants pleaded guilty, the facts were given and the
defendants were acquitted and discharged.
Held : the procedure adopted in this case was not that which should be done where it is intended to
compound a case. The practice is for the prosecutor to apply to the court for permission to
compound the case or to inform the court that the parties have come to a settlement;
: as the defendants had pleaded guilty, the magistrate was bound under s182(m)(ii) of the
Criminal Procedure Code (Cap 21) to pass sentence according to law. The order of acquittal
and discharge is contrary to s 182(m)(ii) of the Criminal Procedure Code and is further not
authorized under s 30(4) of the Merchandise Marks Ordinance, which merely says that the
compounding, if allowed, should have the effect of an acquittal, so that if proceedings should be
subsequently instituted upon the same facts the defendants could plead ‘autrefois acquit’.

Held : The court dismissed the appeal of the first appellant and allowing the appeal of the second appellant as for the first
appellant, he failed to raise a reasonable doubt on the prosecution's case and failed to rebut the presumption of trafficking on
a balance of probabilities
: As for the second appellant, the trial judge had failed to adequately consider his defence. Had the trial judge
considered all the evidence as required under s 182A of the Criminal Procedure Code, Her Ladyship would have found
that the defence of second appellant that he had no knowledge of the drugs had raised a reasonable doubt on the
prosecution's case and that the conviction of the second appellant was not safe
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 : In the circumstances, the order of acquittal and discharge must be set aside and instead, the
defendants bound over under s 290 of the CPC to be of good behaviour for one year.

Phillip Lau Chee Heng v PP [1988] 3 MLJ 107

Facts :The appellant pleaded guilty to the offence of exhibiting a firearm in a manner likely to put any
person in fear of death at the time of committing a robbery. He was sentenced to three years'
imprisonment and six strokes of whipping. The appellant appealed against the sentence,
contending that the imposition of six strokes of whipping is manifestly excessive. Arising from
the appeal, the Public Prosecutor also sought a revision of the case submitting that the sentence
of three years' imprisonment was unauthorized by law and illegal in view of the mandatory
sentence imposed by s 4 of the Firearms (Increased Penalties) Act.
Held : The penalty of imprisonment for life and whipping of not less than six strokes under s 4 of the
Act, are, upon conviction, mandatory. The sentence of life imprisonment is a fixed one and is not
the maximum that may be awarded so that a lesser sentence of imprisonment may be imposed.
An imprisonment term of three years is clearly wrong and unsustainable.
: While the general rule is that the High Court in revision does not enhance a sentence even
though illegality was committed by the lower court where the sentence passed involves
substantial punishment, the court would have to act where the sentence is improper and is
not in accordance with the law.
: Having regard to the mandatory sentence enacted in s4 of the Act and having considered the
facts which fell within that section, the three-year imprisonment sentence is clearly improper and
unauthorized by or not according to law. The three-year sentence is altered to one of life
imprisonment, and the mandatory six strokes of the whip are affirmed.

6.1) Section 183A : Victim’s impact statement

Section 183A : Victim’s impact statement
(1) Before the Court passes sentence according to law under section 183, the Court shall, upon the
request of the victim of the offence or the victim’s family, call upon the victim or a member of the
victim’s family to make a statement on the impact of the offence on the victim or his family.
(2) Where the victim or a member of the victim’s family is for any reason unable to attend the
proceedings after being called by the Court under subsection (1), the Court may at its discretion
admit a written statement of the victim or a member of the victim’s family.

● This amendment which came in force in 1st June 2012 allows for a victim’s impact statement to be
taken into consideration before the court passes sentence. This will give the court a sense of what
the victim or his family went through as a result of the offender’s transgressions into their private
lives and to pass the appropriate sentence accordingly.
● Parliament in its wisdom has deemed it fit to insert this provision under the CPC, which deals with
trials before the High Court but the provision is meat for all courts as the word “court” is defined by
the, s2(1) of CPC to mean the High Court, a Sessions Court or a Magistrates’ Court of any class.
(So, this is not limited to HC only)

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 Chapter 4: Matters In Relation To Trial : Submission

1. Opening Address
● An opening address by the DPP is usually quite helpful especially in cases which are complex in nature.
However, this is mandatory only in trial (ie proceedings in upper curts) but not summary trials. (ie
proceedings in lower court) :

Section 174(a) : In a summary trial, the officer conducting the prosecution need not open the case
but may immediately produce his evidence.
- In a summary trial, the DPP needs only to inform the court the number of
witnesses he intends to call before proceeding to call his witnesses and
adduce evidence.

Section 179 :  The officer conducting the prosecution shall open his case by stating shortly
the nature of the offence charged and the evidence by which he proposes to prove
the guilt of the accused.
- an opening submission is compulsory for a High Court Trial

2. Submission of No Case to Answer (SONCTA)

● At the end of the prosecution’s case (After the prosecution has presented all its evidence and has closed
its case), the defence is entitled to make a submission of no case to answer (SONCTA).
● SONCTA is a submission that no case has been made out against the accused. It is a bid by the defence
to persuade the court not to call on the accused to enter upon his defence. In other words, a defendant
seeks acquittal without having to present a defence. If the judge does not accept the submission, the case
continues and the defence must present their case.
● CPC: There is no express provision on SONCTA but it is the practice of the court to allow such a
submission.

PP v ONG KHOON SENG [1982] 1 MLJ 351

Fact : The respondent was charged with the offence of being knowingly concerned in the fraudulent
evasion of customs duty. At the close of prosecution’s case, while the defence was submitting
SONCTA, the magistrate stopped him and noted that there is no provision in law which made it
mandatory for him to hear the SONCTA. The magistrate then proceeded to rule that the
prosecution had failed to establish a prima facie case and he acquitted and discharged the
accused. The PP appealed.
Held : Although there is no express provision in CPC permitting SONCTA or for the trial court to
hear such a submission at the close of the prosecution case, the practice of the courts has

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 always been to allow the defence counsel to make such submission if he desires and for the trial
court to permit the DPP to reply to such a submission.63

● In considering the SONCTA by the defence, the court has to consider whether the PP has made out a
prima facie case against the accused.

2.1 Previous Position

● Previously, the position was that the court has the discretion to decide whether to hear a submission
of no case to answer and it may decline to do so having regard to the strength of the case for the
prosecution.

PP v H Parnaby [1953] MLJ 163

Fact : This was an appeal by the PP against the acquittal of the respondent on a charge under the
Customs Enactment 1936. One of the grounds of appeal was that the magistrate should have
permitted the prosecution to reply to the point of law made by the defence counsel at the close of
the case for the prosecution
Held : The court has a discretion in deciding whether to hear a submission of no case to answer and it
may decline to do so having regard to the strength of the case for the prosecution.

Chong Boo See [1988] 3 MLJ 292

Fact : The accused was charged with drug trafficking. The defence counsel formally submitted
SONCTA.
Held : The court was of the opinion that it had discretion in determining whether to hear the SONCTA
or not. Given the strength of the case for the prosecution, the court declined to hear the
SONCTA.

● The position on the above cases has been rebutted in Lee Kwan Woh. See below*

2.2 Current position

Lee Kwan Woh v PP [2009] 5 MLJ 301
Fact : The accused was charged and convicted for drug trafficking. At the close of the prosecution
case, the trial judge had ruled that the prosecution had made out a prima facie case under section
180(1) CPC and that he therefore did not need to hear any submission of SONCTA.
Held :The constitutionally guaranteed right in an accused to a fair trial includes his right to make
SONCTA at the close of the prosecution’s case. The accused may waive the right but cannot
be deprived of it.64

63
The court also reminded the counsels that both the defence counsel and the DPP are officers of the court and that they
are there to assist the court.
64
GSR: The unanimous judgment held that constitutional rights must be read prismatically and generously, not literally.:
“In our view, it is the duty of a court to adopt a prismatic approach when interpreting the fundamental rights
guaranteed under Part II of the Constitution. When light passes through a prism it reveals its constituent colours.
In the same way, the prismatic interpretive approach will reveal to the court the rights submerged in the concepts
employed by the several provisions under Part II. Indeed the prismatic interpretation of the Constitution gives life
to abstract concepts such as "life" and "personal liberty" in Article 5(1).”
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 : In this case, the accused was deprived of the right to submit SONCTA and his conviction was
set aside. It is the Court’s duty and it MUST invite submissions from an accused must at the end
of the prosecution case

● Also, if you did not make a submission of no case to answer, it may imply that you accepted the
PP’s case, ie you admitted that there is a prima facie case.

Azaman bin Aziz v Public Prosecutor [2017] 5 MLJ 510

Fact : The appellant was found guilty on a charge of drug trafficking. During trial, the defence
did not make any SONCTA at the end of the prosecution’s case. However, when he
appealed later, he suddenly raised that the weighing machines (which measured the
drugs) were not calibrated and therefore inaccurate and sought to say that the PP didn’t
make a prima facie case.
Held :It was implicit that the defence had conceded that a prima facie case was established
against the appellant upon the charge against him.
: The appellant never adduced new evidence to warrant a re-visit of the prima facie
finding on the weight of the cannabis. No challenge was made as to the weight and the
weighing machines used to weigh the cannabis as well. Hence, there is no basis for the
appellant to complain at the appeal that the weighing machines were not calibrated and
therefore inaccurate.
: By only raising it at the appeal stage, it denied the witness opportunity to refute the
allegation or explain the condition of the weighing machine.
: The appellant’s counsel should have put his essential and material case in the cross-
examination at the trial stage to cross-examine the prosecution witnesses, failing which it
follows that the testimony of the prosecution witnesses are to be accepted.

3. Defence Opening Address & Summary

● If the court considers that the PP has made out a prima facie case against the defendant, the defence will
be asked to enter his defence (after weighing PP’s evidence against the SONCTA).
● As mentioned, the accused will have 3 options to enter his defence:
i. Remain silent
ii. Submit sworn statement
iii. Submit unsworn statement
● At this stage, for summary trials, Section 174(b) provided that there are 2 things the defence may no:
i. Opening address
ii. Summary of case

Section 174(b)
: when the accused is called upon to enter on his defence, he or his advocate may, before
producing his evidence, open his case stating the facts or law on which he intends to rely and
making such comments on the prosecution’s evidence, and if the accused gives evidence or
witnesses are examined on his behalf, he may sum up his case.

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 P/s: Section 174 is only applicable to summary trials. High Court trials are not subjected to this section.

3.1) Defence’s “opening address”

o This opening statement confers a right on the accused person to open his case by stating the facts or
law on which he intends to rely and make such comments as he thinks necessary on the evidence of
the prosecution.
o The word “may” implies that the accused has a discretion to make an opening statement or not.
o In practise, however, this is rarely done. Usually, the defence counsel will call his witnesses and
adduce evidence straightaway, which leads to the next step “summary of case”

3.2) Defence’s “summary of case”

o As mentioned the part of opening address will usually be skip in practice and the accused may bring
in his evidence and witness straightaway.
o After adducing all evidence and examining all his witnesses, defence counsel may sum up his case.
o In practise, this is usually allowed and done.

Manickam v Rex [1948] 1 MLJ 185c

Held : It is desirable that any address by the counsel should be made after the person accused
has given his evidence. If there are other witnesses for the defence, such an address
should be postponed until all have completed.

3.3) Cases
● Making closing submissions is the accused’s right and failure to allow is a serious irregularity
which would result in the conviction being quashed.

Mahindar Singh v PP [1941] MLJ 230

Fact : The appellant was charged with voluntarily causing hurt and was convicted and
sentenced. He appealed on the ground, inter alia, that the magistrate did not give his
counsel an opportunity to address the court.
Held : Failure on the part of a trial judge to allow an accused person to make closing
submissions after the close of the defence case constitutes a serious irregularity which
would result in the conviction being quashed.

4. Defence’s closing statement

● Defence can make their closing statement under S174(b) (for summary trial) and S181(1) CPC (for
High Court)

Low Thim Fatt v PP [1989] 1 MLJ 304

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 Fact : The appellant and two others were jointly charged and convicted for the offence of robbery.
During trial, after the SONCTA and the defence was called, he chose to remain silent and offered
no further evidence.
: On appeal, one of the ground of appeal was that the president was wrong in law in that once
the defence was called and the appellant elected to remain silent, the president did not allow
counsel for the appellant to make a submission on the totality of the evidence as a whole and
held that the submission at the close of the prosecution had sufficed.
Held : The president was right in refusing to allow counsel to make any further submission after the
defence was called. If counsel for the appellant was allowed to make a submission, he would
have nothing new to say except to repeat his submission at the close of the case for the
prosecution.

● In cases where the accused made unsworn statement. Whether or not defence counsel would have the
right to make closing statement would depends on whether there are other evidence.
- If there is other evidence, then as a matter of practise, the defence ought to be allowed to make a
closing submission.
- However, if there is NO other evidence, then the situation would depend on whether the unsworn
statements constitute an evidence.
● The position of whether an unsworn statement constitute an evidence has been changing but the current
position is that it is not an evidence.

1959: Wong Heng Fatt v PP [1959] MLJ 20

Held : An accused person does not have a right to make a closing submission where he has not given
sworn evidence.

1968: Ng Hoi Cheu v PP [1968] 1 MLJ 53

Fact : During trial, the counsel for the appellants did not make any submission at the close of the case
for the defence despite attempting to so. He was prevented by the president of session court
because the accused had merely made statements from the dock and hence did not give any
evidence.
Held : On appeal, the court held that statement from the dock is evidence.
Referring to section 3 of Evidence Act 1950, it came to the conclusion that a statement from the
dock comes within the definition of evidence and hence entitling the accused to address the
court.

1970: Sanassi v PP [1970] 2 MLJ 198

Fact : At the close of the prosecution case, the accused was asked to enter upon his defence and he
elected to make an unsworn statement from the dock. In the course of making such statement,
he also referred to various statements which he said he made to the police investigating the
officer in the course of his investigations.
Held :An accused has a right to make an unsworn statement from the dock but such a statement
does not constitute evidence and the accused making such a statement cannot be a witness.

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 - The reason for such decision was that under section 3 of the Evidence Ordinance, the
statements to be accepted must be made witnesses. Then, section 4(1)(a) of the Oaths and
Affirmation Ordinance 1949 stated that a witness is a person who may be lawfully examined
or who may give evidence or be required to give evidence and witness is, under the section,
required to take an oath.
- An accused making an unsworn statement from the dock is not a witness and hence his
statement does not constitute as an evidence.

● Dr Jana: Actually unsworn evidence should be evidence as the accused is given an option to give
unsworn statement (which won’t be cross-examined as opposed to sworn statement). It can hold less
weightage but should not be disregarded as evidence.

5. Reply by PP
● In summary trials, if the accused has adduced evidence, the prosecution shall have the right of reply.
However, for High Court trials, this right is exercisable regardless of whether the defence adduced
evidence or not.

Section 174(c) : In summary trials, when the accused has adduced evidence, the prosecution shall
have
the right of reply on the whole case.

● However, in summary trial or high court trial, such a right is not mandatory.
- If the PP gives no inclination to the trial court that he wishes to exercise his right then it would not
be unreasonable for the trial court to assume that he does not wish to exercise such right.
- Such omission or failure to exercise that right will not amount to an error, omission or irregularity
which would occasion a failure or justice and is curable under section 422.

PP v Abang Abdul Rahman [1982] 1 MLJ 346

Fact : During summary trial, the magistrate did not allow the prosecution to address the court at the
end of the defence case. The prosecution later appealed on this ground.
Held :Section 174(c) CPC makes it a duty on the counsel to claim such a right if he wishes to exercise
it. Furthermore, it is also the duty of the counsel to assist the court in respect of relevant matters.
: The record shows that the counsel never exercised his right to sum up the case for the
respondent. Thus the ground of appeal couldn’t stand.
: The court also noted that even if what occurred in this connection may be regarded as an error,
omission or irregularity within the meaning of section 422 CPC, such error, omission or
irregularity has not occasioned a failure of justice which is curable

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 Chapter 5: Matters In Relation To Trial :
Question by the Court , Viewing by the Court & Compounded offences

Part 1: Question by the Court

1) Governing Provisions
● There are 2 sections providing for the Court’s power to ask questions: S165 of Evidence Act & s 265 of
CPC.
● S165 refers to a more general situation. This section does not confine to the accused person himself. S.165
is wider than s.265 of CPC.

S.165 of Evidence Act: Judge’s power to put questions or order production

The Judge has the power to ask specific questions to any witnesses of either parties in relation to
relevant facts.

● Under s256 CPC, subsection (1),(4),(5) & (6) provided that the purpose of examining an accused is not to
incriminate him but to let him explain evidences against him:
S.256 65 of CPC: Court may put questions to accused
(1) Court is empowered to question the accused or examine him for the purpose of enabling him
to explain any circumstances appearing in evidence against him.

(2) For the purpose of this section, the accused shall not be sworn and he shall not render himself
liable to punishment by refusing to answer the questions or by giving false answers to them,
but the Court may draw such inference from the refusal or answers as it thinks just
.
(3) The answers given by the accused may be taken into consideration in the trial and put in
evidence for or against him in any other trial for any other offence which those answers may
tend to show he has committed.
o Even though the answer is not made under an oath, but it may be taken into consideration in
the trial.
o The accused person’s answer can be used as an evidence for or against him in any other trial.

65
S.256(1): For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court
may at any stage of a trial, without previously warning the accused, put such questions to him as the Court considers necessary.
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 o In other words, if his answer revealed the other offences that is not charged in this current
trial, then his answer will be used as an evidence in the other trial.

(4) The examination of the accused shall be for the purpose of enabling him to explain any
circumstances appearing in evidence against him and shall not be a general examination on
whatever suggests itself to the Court.
o This section just reiterating subsection (1).
o The power to pose question to the accused under s.256 for that specific purpose, i.e. to give
chance for the accused person to explain the circumstances appearing in evidence against
him and shall not be a power where the court can examine or cross examine the accused.
o No general examination is to be carried out by the court against the accused.

(5) : The discretion given by this section for questioning an accused shall not be exercised for the
purpose of inducing him to make statements criminatory of himself.
o The discretion of the court under this section to the accused person is not to be exercised with
the purpose of inducing him to give statement or to give evidence that will incriminate
himself.
(6) :It shall only be exercised for the purpose of ascertaining from an accused how he may be able
to meet facts disclosed in evidence against him so that those facts may not stand against him
unexplained.
o This section further elaborating subsection (1) & (4).

(7) : Questions shall not be put to the accused merely to supplement the case for the prosecution
when it is defective.
o If the prosecution has not/forgotten to ask a specific question, this (7) said that the court
should not ask that question to facilitate the case of the prosecution when it is defective.
o The court cannot help/assist the prosecution case by exercising its power under s.256.

(8) : Whenever the accused is examined under this section by any Court other than the High Court,
the whole of the examination including every question put to him and every answer given by him
shall be recorded in full by the courts in Peninsular Malaysia in national language and by the
courts in Sabah and Sarawak in English language, and the record shall be shown or read to him
or, if he does not understand the national language or the English language, as the case may be,
shall be interpreted to him in a language which he understands, and he shall be at liberty to
explain or add to his answers.
o Subsection (8) requires for the whole examination by the court, including every question put
to him and every answer given by him, to be recorded in full by the courts.
o It must be in verbatim.
o If the Q&A are to be interpreted, then the accused person is given the liberty to explain in the
language that he can understand.

(9) : When the whole has been made conformable to what the accused declares to be the truth, the
record shall be signed by the presiding Magistrate.

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 o Basically, the Magistrate should record everything down and once the accused person had
confirmed and read back to the accused person, then the Magistrate has to ensure that the
accused person has stated the truth and the record is to be signed by the Magistrate.

● Generally, the courts’ role is semi-passive in the sense that the court will be taking down notes and
observing both parties, and sometimes the court may intervene during the proceedings to clarify something
but the Court cannot be the “lawyer” to examine a witness or the accused. However, this doesn’t mean the
Judge cannot ask question. If the purpose of the questions are merely to “ascertain the truth”, the judge can
such questions.
Gan Kok Liong v PP [1969]
Fact : The accused person was convicted on a charge under section 15(2) (f) and punishable under
section 15(4) of the Prevention of Crimes Ordinance, 1959, and was sentenced to two years'
imprisonment. An appeal was made. The ground of appeal was the President of Sessions
Court had subjected appellant to severe cross-examination thus preventing a fair trial. It is
said that the president had descended into the arena, thus clouding his vision with the dust
of the conflict.
Held : “In this case, the trial was not conducted in an irregular manner by reason of the frequency
and nature of interruptions by the president which rendered it impossible for the defence to be
fairly presented. Neither can it be said that the president took the examination out of the hands
of counsel. He interposed in order to enable him to acquire indicative evidence.
: If the object of a trial is first to ascertain truth and then do justice – justice according to law -
upon the basis of this truth, then the president is not only justified but required to elicit any facts
he deems important wherever these interests of truth and justice would suffer if he fails to do
that.”

Lim Chin Poh v PP [1969] 2 MLJ 159

Fact : The accused was convicted for dangerous driving, which is an offence punishable under section
26(1) of the Road Traffic Ordinance, 1961 & sentenced to one year imprisonment. Trial judge
had intervened in no less than 15 occasions and that he had cross-examined the accused.
Although the accused should not be left feeling prejudiced by the fact the judge had questioned
him, it was held that in this case the trial judge was merely trying to ascertain the truth and as a
whole, there was nothing irregular in the trial.
Held : Although the accused should not be left feeling prejudiced by the fact the judge had
questioned him, the trial judge was merely trying to ascertain the truth and as a whole,
there was nothing irregular in the trial. There was no evidence to show that the trial judge had
taken the side of the prosecution. District judges and magistrates should bear in mind that the
accused is having a fair trial and where the prosecution and the defence are both represented by
counsel, the trial judge should refrain from intervening unless it is absolutely necessary.

Teng Boon How v PP [1993] 3 MLJ 553

Fact : The accused was charged and convicted under s.39B(1)(a) of DDA. An appeal was made. The
grounds of appeal are

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 i. the trial judge had assumed the role of a prosecutor by cross-examining the accused and
defence witness not just for the purpose of clarifying the testimony given but to include
matters not arising from the evidence adduced and
ii. the trial judge had misdirected himself.
Held : In this case, the judge had fallen into error by,
i. descending into the arena of dispute and
ii. allowing his judgment of the facts to be clouded by the results of his cross-examination
which include matters not arising from the evidence adduced.
Taken together these errors were sufficient to lead to the quashing of the conviction.

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 Part 2: Viewing by the Courts
1) Introduction
- There may be situations whereby in a particular criminal trial, it is found by the court that there was a
necessary to view the place.
- There are NO specific provisions stated in CPC with regards to viewing by the courts. When you have
situation like this, the fact that there are procedures which are not specifically provided for in CPC is
acknowledged. However, under s.5 CPC, Court can refer to the English law when there is lacuna/gap in
CPC.
- This viewing by the courts may be necessary in certain cases only; not in all cases.
- Previously, it was provided in HC trials with the aid of assessors (s194) & jury trials (s218) but these
provisions had since been repealed.
- Currently, no specific/express provisions empowering the subordinate or superior courts to visit the scene
of crime.
2) Locus in Quo (Holding of View)
- Viewing by the court is also known as locus in quo.
- Since there is no specific provision that governed the viewing by the courts, it may be possibly done
through

S417(1)(c) CPC:
When viewing the place may be required for the satisfactory of trial, the High Court may transfer the case
to other courts.

▪ Viewing must be done in the presence of all the relevant parties as viewing is part of the proceedings. The
judge cannot view a place alone with either party. Both the accused (or his counsel) and the prosecution
must be there.

Harban Singh v Regina [1954] MLJ 158

Fact : The accused was charged in driving recklessly, the accused pleaded not guilty and gave
testimony that he actually passed the roundabout in a correct manner. After the conclusion of
his evidence, the Magistrate actually visited the scene of the incident in the company of the
PO but without the presence of the accused or his counsel. As a result of his visit, the
Magistrate formed a certain opinion and he passed judgment based on that particular opinion.
There was no evidence which was produced with regards to the layout of the location.
Held : The Magistrate should not view the location together with the PO. A viewing must be done
together with both other parties, ie the accused person and/or his counsel and the PO, not only by
the Magistrate alone or with a PO w/o the accused person and/or his counsel. On this ground
alone, a retrial is ordered as a layout is important but not produced.

● During a viewing, the judge is still a judge. He cannot view the place and draw his own inference. He
should ask questions to the accused to ascertain the fact, so that the accused can explain.
Manager, Tuborg (Msia) Sdn Bhd v PP [1990] 2 MLJ 173
Fact : The Manager was charged under Food Act 1983 and the offence is that of selling a bottle of
beer containing fungus growth. A viewing was carried out by the Magistrate to the factory. As a
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 result of that visit, the Magistrate specified 2 grounds for rejecting the defence. The first ground
is that the machine is only put in place after a certain date, so as it was not informed of what the
date was, it drew an adverse inference. Therefore, the bottle is not properly scanned.
Held : The inference drawn by the Magistrate was unjustified as there was nothing noted in the
notes of evidence. Also, the Magistrate visited the newly installed machine without asking
questions to the accused person. A magistrate when conducting a summary trial is performing
the function of judge & jury. Thus, he has the same powers as a judge to view the scene under s
218 (has been repealed) of the CPC. This viewing of the locus in quo may be described as a
simple view of an object or place or a view with witnesses in attendance & giving oral evidence
or demonstration.

● The main purpose of viewing is basically to examine and identify the site by a particular witness. 66
Therefore, the viewing must be done after the trial has commenced.
● Also, viewing of a place should only be done to inspect permanent features of the location. Other than
permanent features, all the temporary features can be brought into the trial itself.

Rex v Lee Ah Pua [1950] MLJ 54

Fact : The accused person was charged under s.4(c) of Common Gaming Houses Ordinance, Cap 30.
The prosecutor invited the Court to visit the scene at the earliest possible opportunity alleging
that there were certain temporary erections in the house concerned prior to the trial.
Issues : Whether the Court may have a locus in quo before the hearing of the charge?
: Whether the court can view the place before the accused has the opportunity to engage a
counsel?
: Whether the viewing is an irregularity or illegality?
Held : A view should take place after the hearing has begun and its scope should be limited to an
examination of the place. The purpose of viewing is for the identification of the site, and
preferably by a person already sworn as a witness.
: A view should only be used for examining the permanent features of the place as temporary
features such as those indicated in the present case (pasteboard doors, partitions & a step ladder),
or in other cases, the position of marks on the road, or of the body of a deceased person, full use
should be made of plans & photographs coupled with the oral evidence of reliable witnesses.

● Points to be followed when viewing a murder scene:

Sarjit Kaur a/p Najar Singh v PP
Fact : The wife murdered her husband. The deceased (husband) was killed when he was asleep. His
throat was slit. A viewing was conducted and few points were laid down.
Held : Procedures to be applied during the view of house where deceased was killed-
i. That the accused be present; (not sure if this is the current position)
ii. Any conversation conducted during the view ought to be within the hearing of the
accused;
iii. No questions were to be asked of the accused;
iv. As view was part of court proceedings, the whole court should adjourn to view the
place; and
v. No photographs were allowed inside the house.

66
So, when talk about witness, it means the trial has commenced.
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 vi. A view is part of the evidence;
vii. The judge must take a view in the presence of both parties, or both parties must be
given the opportunity of being present, the only exception is where the judge goes to
see some public place, i.e. the scene of a road accident; and
viii. The judge should not attend anything in the form of a demonstration or reconstruction
in the absence of the parties.

Part 3: Compoundable Offences

1) Introduction
- Compoundable offences are offences which allow the wrongdoer to compensate the victim without having
to go through the trial process. This is provided in section 260 CPC. (will be explained below)
- This means the offender is allowed to compensate the victim by coming to an agreement to settle where the
victim is willing to forgive in exchange with some compensation.
1.1) English Principles governing Compoundable Offences
- This principle is applicable only in certain classes of offences, primarily those which is of private
nature & for which damages may be recovered in a civil action.
- Alternatively, composition is deemed unlawful if offence is of public concern.

2) Section 260
● S260 provided that only offences mentioned in Part A and Part B is compoundable:
S.260
(1) : The offences punishable under the Penal Code described in the first two columns of Part A may,
- when no prosecution for such offence is actually pending, be compounded by the person
mentioned in the third column of Part A; OR
- when a prosecution for such offence is actually pending, be compounded by the person with the
consent of the Court before which the case is pending.

(2) : The offences punishable under the Penal Code described in Part B may, with the consent of the Court
before which the case is pending, be compounded by the person to whom the hurt has been caused.

● Other subsections under S260

S260
(4): A competent person can contract on the offender’s behalf if the offender is incompetent to contact
When the person who would otherwise be competent to compound an offence under this section is not
competent to contract, any person competent to contract on his behalf may compound the offence.

(5): Composition of an offence amounts to acquittal

The composition of an offence under this section shall have the effect of an acquittal of the accused.

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 2.1) Two Types of Compoundable Offences
Refer to Part A & B in Penal Code.
Part When can compound ? Example of Offence
A - Victims may only compound the Example of Type A Offences67:
offenders when there is no
▪ S.298 Penal Code
prosecution pending for such
▪ Ss.323,324
offence.
▪ Ss.341,342
- Where prosecution is pending,
▪ Ss.352,355,358, S.374
the offence can only be
▪ Ss.426, 427
compounded with the consent of
▪ Ss.447.448
the Court.
▪ Ss.491, 498
▪ Ss.500, 501, 502, 504

B Only allowed with the consent of court Examples of Type B Offences:

before which the case is pending.
▪ S. 325
▪ S.335
If the case is pending, it is not ▪ S.337
compoundable ▪ S.338

2.2) Principles of Compounding an Offence

● Only the prosecution can inform the court/ apply for compounding an offence, not the defence counsel.
● If the accused had pleaded guilty, the judge must pass the sentence and no compound of offence can be
made. Hence, the accused must withdraw the plea only then the prosecution applies to the court to have
the offence compounded.

Re Chang Cheng Hoe [1966] 2 MLJ 252

Fact : There is an agreement to compound. Defence counsel informed the court that the accused were
agreeable to compound the offence provided that the PG and prosecution do not seek for a
deterrent sentence. However, the accused had pleased guilty earlier on Court compounded the
offence.
Held : It was a wrong procedure. To compound an offence, it is the prosecution who should inform the
court that the parties have come to a settlement, or where the permission of the court is required,
the prosecution can apply to the court for compounding an offence.
: Besides, as the accused had pleaded guilty, the magistrate was bound under s182(m)(ii) to
pass sentence according to law and not to compound the offence. It should be left to the
discretion and good sense of the courts to have regard to the interests of both of the public and
the parties, the circumstances and the nature of the offence in deciding whether to allow a case to
be compounded.

● When court’s consent is required to compound an offence, the court should lean towards granting
consent where public interest does not figure strongly.

67
Refer to table on page 134 CPC.
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 PP v Azhar Che Wil [2006] 3 CLJ 987
Fact : This case is involving a prisoner who attempted to escape from the prison but get caught. When
he was caught, the prison officers who caught him literally kicking and stomping the deceased’s
head to death. The deceased went into a seizure then coma. Eventually, he was assaulted to
death. There was a series of assault involving different number of accused in different localities.
7 were charged with murder and 4 were charged with causing grievous hurt. The parents of
deceased sought the court’s consent to have the offence be compounded under s.260 CPC
Issues :.Whether the court ought to grant consent for the offence under s.325 to be compounded?
Held : The Court granted the application for compounding the offence since both parties had
voluntarily came to the agreement and it doesn’t affect public interest. The court should lean
towards granting consent where public interest does not figure strongly.68
- The offence of voluntarily causing grievous hurt under s. 325 of the Penal Code is
compoundable as it falls under Part B as mentioned in s. 260(2) CPC. Such composition
must be with the consent of the court when the case is already before the court.
- However, because of the usage of the word “may” in that sub-section, the granting of
the consent is a discretion of the court. Such discretion must of course be given
judiciously, based on the law and accepted principles and practice. On the facts, the
parents of the deceased are empowered to compound the offence on behalf of their
deceased son pursuant to s. 260(4) CPC. 69
: It was further held that any compoundable offence can be compounded under an agreement
between victim of the offence or by any person competent to contract on his behalf.
PP v Norzian bin Bintal [1995] 3 SLR 462
Held : The Public Prosecutor cannot object to a proposal to compound and that court should lean
towards granting consent where public interest does not figure strongly.

68
But the Court and convicted the 1st accused but acquitted and discharged all other accused.
69
“The deceased was injured when he was recaptured after an abortive attempt to escape and the injury was caused in
the course of the accused persons executing their duty. The fact that the accused persons were prison personnel did not
give rise to public interest. There was thus no public interest arising from the incident.” The judge further said “As the
parties had voluntarily agreed to have the offence compounded, and as there is no real injury to the State or any issue of
public interest arising, there is no reason why consent should be withheld.”
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 Chapter 6: Matters In Relation To Trial : Adjournment

1. Section 259 CPC

● Section 259 empowers all criminal courts (lower and upper courts) to postpone or adjourn proceedings
with an order in writing if a witness is absent or for any other reasonable cause.

259. Power to postpone or adjourn proceedings

(1) If, due to the absence of a witness or any other reasonable cause, it becomes necessary or
advisable to postpone the commencement of a trial or adjourn a trial, the Court may, by order in
writing, postpone or adjourn it on such terms as it thinks fitsuch time as it considers reasonable
and may, by warrant, remand the accused if he is in custody:

Provided that no Magistrate shall remand an accused person to custody.

Provided further that where a Government Medical Officer has certified that the complainant will
not be able to give evidence before a certain date, the accused may be remanded until such date
notwithstanding that the term of remand may exceed eight days.

(2) Every order made under this section by the Court of a Magistrate shall be in writing, signed by the
presiding Magistrate, and shall state the reasons for it.  

Explanation—If sufficient evidence has been obtained to raise a suspicion that the accused may
have committed an offence and it appears likely that further evidence may be obtained by a
remand, this is a reasonable cause for a remand.

● The accused will be placed on remand during the period of adjournment.

● Section 259 CPC is to be read with section 176(2)(o)70 which requires the order made under this section
to be in writing, signed by the presiding magistrate and shall state the reasons.
● Section 259 provides that postponement may be granted either when the witness is absent or for any
reasonable cause.
o Explanation to section 259 suggests one such “reasonable cause” where, if sufficient evidence has
been obtained to raise suspicion that the accused may have committed an offence and it appears
likely that further evidence may be obtained by a remand, then the court can order a remand to
obtain more evidence and accordingly adjourn the trial.
● Postponement is a matter for the discretion of the court which is not an arbitrary one but rather to be
exercised judicially. The discretion is entirely that of the court and is unfettered by any outside authority
regardless of the rank or status of accused.

70
section 176
(1):  In proceedings under this Chapter (Chapter XIX : Summary Trials By Magistrates), the Court shall keep a record of
the particulars of each case by using and completing or causing to be completed a charge sheet in accordance with such
forms as the Chief Judge may direct and, where all necessary particulars cannot conveniently be entered on any such
form, by annexing to it any requisite number of continuation sheets.
(2)(o): The particulars to be incorporated in the record shall include: the date of each adjournment or postponement and
the date to which the adjournment or postponement was made and the grounds for making the same;
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 1.1) Terms To Adjournment
● Under S259, the judge may impose any terms he deems fit in the grant of adjournment.
● This is to protect the interest of the complainant so as not to prejudice him by reason of the
postponement.

1.2) “Reasonable Cause”

● As mentioned, the explanation to Section 259 gives one of the examples of situations where
“reasonable cause” may occur.
● However, this doesn’t mean that every such case must be a reasonable cause as there is no specific
defined of “reasonable cause”. Hence, the term “reasonable cause” is open to more interpretation
and must be dealt from case to case basis.

Tan Foo Su [1967] 2 MLJ 19

Fact : A defence witness was absent but the magistrate refused to postpone the case for that
witness to be called.
Held : What’s “Reasonable cause” is a term of art for lawyers and no definite ruling can be
laid down. Each case must be dealt with according to its own peculiar circumstances.
: Considerations may occur when a postponement or adjournment of a trial becomes
desirable, namely, that a witness who has been named by an accused person is absent on
the trial date.
: Every latitude must be given to an accused person to defend his case and to call
witnesses.
: In this case, the circumstances warranted an adjournment so that the witness named may
be called.

PP v Low Yong Ping [1961] 1 MLJ 306

Fact : PP applied for an adjournment as 2 of their witnesses had gone to the High Court for a
case whereas the other witnesses were not available. The magistrate refused to allow the
adjournment and acquitted and discharged the accused. The PP appealed.
Held : The court allowed the appeal. The absence of the witnesses which arose from them
going to the High Court for a case is a reasonable cause for adjournment and is not a
frivolous ground. Further, there had also been no repeated postponement or adjournments
obtained by the prosecution before that.

2. When does adjournment may not be granted?

● General rule: Magistrates should refrain from granting adjournment unless necessary for the sake of
justice.

PP v Tanggaah [1972] 1 MLJ 207

Fact : This case concerned the refusal of a magistrate to grant any further adjournment of a case
which had been adjourned seven times.
Held : For a criminal case, public interest demands that criminal justice should be swift and sure and
that the trial should be finished as soon as possible. The longer the period is allowed to elapse

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 from the time of arrest to the time the witnesses give evidence, the greater are the chances of
confusion and of truth veiled in obscurity.
: The question of adjournment is a discretion of the court and must be exercised judicially and
only in cases which come within the terms of Section 259 (when the witness is absent or when
there are “reasonable cause”) .
: The general rule is that magistrates should refrain from granting adjournments except in
those cases where adjournments are clearly necessitated for the purpose of justice. The
reasonable cause also must be stated in the order so that the accused and the appellate
court can know the cause of the adjournment.
: In this case, the postponement was caused by the delay made by the counsel himself and hence
there is no reason for appeal to be allowed.
2.1) Appointment of counsel as a ground for adjournment
● Generally, one cannot use request for adjournment if he unreasonably failed to secure a counsel for
himself or if he only appoint a counsel at the last minute before his trail.

Kahar ak Tongah v PP [1992] 4 CLJ 1865

Held : If accused has been given ample time to seek legal representation but chooses to appoint
counsel last minute, he should be prepared to proceed with the case. Counsel cannot then
complain if request for adjournment is refused.

Por Choo Aik v PP [1993] 2 MLJ 131

Held : It is not reasonable for an accused to appoint a counsel at the last moment and then
apply for an adjournment.

Lee Fook Sam v PP [1963] 1 MLJ 371

Fact : In this case, the appellant did not appoint a counsel. As the appellant was charged for an
offence punishable with death, the court assigned him counsel but at the commencement
of the trial, he informed the court that he was dissatisfied with the counsel and applied for
an adjournment to engage a new counsel.
: The court adjourned the case for 2 weeks. On the 3 rd day of the trial, the new counsel
informed the court that the appellant had withdrawn his instructions and he withdrew
from the case.
: The appellant then applied for another adjournment to engage yet another counsel but
the court refused it and proceeded with the trial without counsel. The appellant appealed.
Held : The request for adjournment was unreasonable and properly rejected and the appellant
was not prejudiced as the defence of alibi and the other defence the appellant put up had
very little prospect of success.
● Cases have even ruled that if the counsel has to appear in another court (even for high court) for an
another court, it is not a “reasonable cause” as the counsel can choose which court he wants to
appear.
Sharma Kumari a/p Oam Prakash v PP [2000] 6 MLJ 282

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 Fact : The appellant was tried and charged under section 182 of the Penal Code. The appellant
appealed on the ground of, inter alia, the magistrate erred in conducting the trial with
unholy haste and hurry and ordered repeatedly the case to proceed almost continuously
on dates which were never scheduled for the hearing of this case irrespective of whether
or not the defence counsel was engaged in superior court which had fixed hearing dates
prior to this case.
Held : From the record, all the days upon which the hearing was conducted was the subject of
an order of court on the record. No hearing was heard at a time not reflected by a prior
order. The hearings could not be said to have been heard on dates not scheduled.
: The principle in section 259 CPC is that a trial will proceed on the date fixed for the
purpose and if it cannot be completed, it will continue until it is completed. It is not
automatic.
: The discretion to fix the date is with the court. As with all discretion, it is to be
exercised judicially. But once the order is made, and whether one agrees with a decision
or order or not, the law remains that once the court makes an order, it is to be complied
with until it is set aside. The personal problem of counsel having too many commitments
for appearances in other courts cannot interfere with the schedule of the courts. Otherwise
all trials can be postponed indefinitely by the simple device of every accused person
appointing the same counsel and he accepts all appointments. That cannot be in the
interest of justice and of other lawyers. Further r 6(a) of the Legal Profession (Practice
and Etiquette) Rules clearly provides that an advocate and solicitor shall not accept any
brief unless he is reasonably certain of being able to appear and represent the client on the
required day.
: Further, there is no principle that a lower court must vacate a hearing date just because a
counsel who is to appear in the lower court has to appear in a superior court. The powers
of all courts to administer its own schedule remains with each court. Section 259 of the
Criminal Procedure Code provides that adjournment may be granted for
reasonable cause. Having to appear in another court is not a reasonable cause, for it
leaves it to the counsel concerned to decide on his own in which court he prefers to
appear.

● However, if valid reason is given, adjournment may be given on the ground of appointment of
counsel”

Awaludin v PP [1992] 1 MLJ 416

Fact : The 3 accused were jointly tried in the sessions court for forgery and abetment of
forgery. While the 2nd accused was represented throughout the trial, the counsel for the 1 st
and 3rd accused repeatedly discharged himself and then act for them again throughout the
trial. This caused some evidences for the PP was admitted without the 1 st and 3rd accused
being represented. At the end, while the 3 rd accused were represented by the same
counsel, the 1st accused had to find and secured another counsel, who applied for a short
adjournment to study the notes of proceedings. However, the application was not granted.

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 Held :Although the court should be strict in dealing with application for postponement, the
court owes a duty to an accused person to ensure that he has the benefit of counsel who
would be properly able to act on his behalf.
: In this case, since counsel had just been retained for the 1 st accused, a short adjournment
would further the interest of justice as counsel needed the notes of evidence to be
properly prepared to safeguard the accused's interest

2.2) Medical certificate as a ground for adjournment

● Even if the counsel can’t attend the court due to sick, adjournment is not automatic and must be
decided from cases to case basis.

Mohd Ekram v PP [1962] 1 MLJ 129

Fact : The appellant had retained counsel to defend him in a private summon but on the trial
date, the counsel was ill. The counsel had sent a letter along with the medical certificate
to the magistrate 2 days before the trial and the counsel for the respondent was also
informed. The magistrate refused to adjourn on the ground that there had been too many
adjournments before the trial date.
Held : A postponement is not automatic following the production of a medical certificate to
account for absence of counsel. Each case should be considered on its own merits. In this
case, although there had been many adjournments before that, there was no record to
show at whose instance the several adjournments were made (It could have been at the
request of the respondent or the appellant). Hence, adjournment was allowed.

3. Whether to postpone or to DNAA (discharging not amounting to an acquittal)?

● In situation where the police is not ready to prosecute (exp: to gather more evidence), can the court
make an order of DNAA instead of granting adjournment? Earlier on, both cases below seem to show
different outcomes (despite decided by the same judge) before these cases were distinguished later
in Karumah:

Hettiarachigae L.S. Perera [1977] 1 MLJ 12

Fact : The defendant was alleged to have neglected to exercise due control over his motorcar. The
case has been adjourned several times. On the final adjourned date before the defendant was
acquitted and discharged, the prosecution seek for another adjournment on the ground that
investigation had not been completed. Counsel for the defendant objected on the ground that
there had been several postponements and the charge should not be left hanging for the
defendant. The magistrate acquitted and discharged the defendant. On revision, the issue was
whether the magistrate was right in making the order of acquittal at that stage.
Held : The magistrate should not acquit and discharge the accused. Instead, he should have just
adjourned the case if the police are not ready, instead of discharging the accused.
: When the police are not ready to proceed, the court can’t just make an order of discharging not
amounting to an acquittal (DNAA). This is because it is only sweeping the dirt under the carpet
to produce neat monthly returns. The police then will just institute fresh proceedings as in this
case and unnecessary paperwork and inconvenience will be caused.

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 : Since the case had not been heard, the only power the magistrate had was to order a discharge
under section 173(g) CPC and this does not amount to an acquittal.
: Article 145 of the Federal Constitution provides that only the AG has the power to institute,
conduct, or discontinue any proceedings. Hence, the magistrate has no power to usurp the
functions of the AG.

Distinguish with:
Tan Kim San v PP [1980] 2 MLJ 98
Fact : The accused was alleged to have committed criminal breach of trust over a period of four years.
It took more than a year for the police to investigate it. When the case came up for trial, the
prosecuting officer applied for postponement for another 6 months on the ground that
investigations had not been completed. The magistrate postponed the trial and the case was
called for revision.
Held : The magistrate ought to have exercised his powers under section 173(g) CPC and discharge
the accused instead of granting postponement of the case.
: The principle is that a person should not be charged in court until the investigation into
the case is complete because it will be unjust for him. Hence, the police should refrain from
the practice of “arrest first, investigate later”. In this case, there was a premature prosecution
and hence the charge is clearly groundless.
: So, the magistrate should use the power under section 173(g) CPC to discharge the accused
anytime as the investigation have not been completed.

● The case of Karumah later explained the position:

Karumah v PP [1980] 2 MLJ 102

Fact : The accused was charged with 3 offence of cheating under section 422 Penal Code. There were
a number of postponements of the trial. On the trial date, the prosecution applied for a
postponement as they were unable to produce the witnesses, who were untraceable. Given the
difference in decision in Perera and Tan Kim San, the President of sessions court referred the
case to the High Court.
Held :As the investigation had been completed in this case and the adjournment was asked to enable
the prosecution to get the witnesses, the court should grant the adjournment.
: The conflict is resolved here (Although Harun J claimed there was no conflict in the cases cited
above):
▪ If the investigation had not been completed, then the court should apply Tan’s case and
refuse the application for a postponement on this ground and DNAA the accused under
section 173(g) CPC.
▪ If the investigation has been completed but the prosecution applies for a postponement
on the ground that witnesses are absent or cannot be traced etc, then the court should
apply the Perera’s case and grant the postponement. If the case is long outstanding then
the court should report the matter to the PP who may in his discretion under section 254
CPC to withdraw the charge.

4. Adjournment sine die.

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● Adjournment sine die is when the case is postponed indefinitely, without any day being fixed for
resumptions.
● A partly heard criminal trial should not be adjourned sine die, nor should it be adjourned to a
date to be fixed as this would result in inordinate delays in the administration of justice

Tan Hun Wah v PP [1994] 1 MLJ 382

Fact : The appellants had been jointly charged for the offence of trafficking drugs. The trial was
spread over for approximately 9 months and 6 days because of numerous adjournments and there
were a delay of 3 years and 3 months before the judgement by the trial judge was supplied.
Held : On the issue of adjournment sine die, the court held in obiter that, it was unacceptable to
adjourn a partly heard criminal trial sine die or to a date to be fixed. This is because such a
practise would inevitably result in ordinate delays in the administration of justice and affect the
quality and reliability of the judgement of the court in the evaluation of the evidence.

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 Chapter 7: Matters In Relation To Trial: Part-Heard Cases

1) Part-Heard Cases
Section 261 CPC: Change of Magistrate during hearing
When a case is heard by a Magistrate and then succeeded by another Magistrate as the initial Magistrate ceased
to have jurisdiction in the case, the succeeding Magistrate can act on the evidence recorded (partly or wholly)
by the previous Magistrate, resummons the witnesses and recommence the inquiry or trial:71

Provided that:
(a) in any trial, the accused may, when the second Magistrate commences his proceedings, demand that the
witnesses or any of them be resummoned and reheard;
(b) the High Court may, whether there be an appeal or not, set aside any conviction had on evidence not
wholly recorded by the Magistrate before whom the conviction was had, if that Court is of the opinion
that the accused has been materially prejudiced thereby, and may order a new trial.

● A Magistrate may cease jurisdiction in case due to

i. Death
ii. Retired
iii. Resigned
o However, what if the Magistrate is transferred to another post within the judicial and legal service?
o What if the Magistrate falls ill for an indeterminate period?

● Once a case is succeeded by another Magistrate, Section 261 provide for 2 options for the succeeding
Magistrate:
i. Continue hearing
▪ In this case, the succeeding Magistrate may act on the evidence heard and recorded
- by the original Magistrate or
- by both the original Magistrate and the succeeding Magistrate

ii. De novo trial (a fresh trial)

▪ In this case, a succeeding Magistrate hears the case from the beginning

In short, there are technically 3 options for the succeeding Magistrate

1. to act on the evidence recorded by his processor
2. to act on evidence partly recorded by his predecessor and partly recorded by himself
3. Trial de novo

● Under S261(a), the accused may demand that the witnesses or any of them be re-summoned and reheard

71
Whenever any Magistrate after having heard and recorded the whole or any part of the evidence in a trial ceases to
exercise jurisdiction in it and is succeeded by another Magistrate who has and who exercises such jurisdiction, the
Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor
and partly recorded by himself, or he may resummons the witnesses and recommence the inquiry or trial:

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 Chelliah v PP [1941] MLJ 16
Held : The word ‘demand’ in s261(a) makes it obligatory for the magistrate to recall a witnesses if the
accused asks for them and leaves no discretion to the magistrate to act upon evidence partly
recorded by his predecessor and partly by himself.

2) Which Option Should The Succeeding Magistrate Choose?

● As mentioned, once a case is succeeded by another Magistrate, the succeeding magistrate can either act on
the evidence recorded or to try the case afresh.
● However, when the court wishes to trail the case afresh, he must have a valid reason to do so. The main
consideration to warrant a De novo trial is fair trial
● Also, the doctrine of res juriscata applies in a trial within trial.

Mohd Anuardin bin Abdul Salam

Facts : The accused was charged under the Prevention of Corruption Act 1961 (repealed). Examination
of 13 prosecution witnesses have been completed. However, the key witnesses had not finished
giving his evidence. The succeeding Magistrate decided to continue hearing the case from where
it stopped under Section 261. There was a voir dire (trial within a trial) which was completed by
the earlier Magistrate.
Issues : Whether the decision of continuance of hearing instead of a de novo trial made under Section
261 is appealable?
: Whether the doctrine of res judicata applies where voir dire has been completed earlier?
▪ Can the accused demand for the witnesses in the trial within trial to be recalled or does the
doctrine of res judicata apply?
Held : The order under Section 261 is not appealable as the order is procedural in nature. An
order under Section 261 is not a final order in the sense that it disposes of the rights of the party.
It is procedural in nature. Therefore, it is not an appealable order.
: In this case, it is not the best option to hear the case de novo as there had been a lapse of 6
years in this case, the witnesses may not be able to accurately recall the events. It would
also unnecessarily prolong the trial and increase the expenses.72
: The doctrine of res judicata applies in a voir dire. In this case, the earlier judge had already
made a decision in the voir dire. Therefore, the recalling of witnesses in the trial within trial was
not allowed as it would be res judicata.
- Note: However, this point is contentious as Dato Mokhtar Hashim held that the judge is
not to decide on the credibility of the witness who is being impeached at the end of the
voir dire as that decision is to be made at the end of the main trial. Thus, it would be
more appropriate to take the position that the said witnesses should be recalled in the
event the accused demands for it as provided under Section 261 CPC.

72
There is already full protection available to the appellants under proviso (a) and (b) of Section 261 CPC. The accused
may demand for the recall of witnesses. The High Court may intervene in the event that the accused is materially
prejudiced

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 Sazali bin Salleh lwn Pendakwa Raya [2004] 7 MLJ 383
Facts : The First Magistrate was transferred to the position of DPP at the close of the prosecution’s
case and the case was postponed for submissions. A Second Magistrate replaced the First
Magistrate. After reading both parties’ written submissions, bundles of authorities and evidence
recorded by the First Magistrate, the Second Magistrate ordered for the appellant to enter his
defence a year later. 73 The Appellant was found guilty, convicted and sentenced to
imprisonment. He then appealed.
Held : Accused was acquitted and discharged, inter alia, on the grounds that
o The Second Magistrate must explain why he failed to use his discretion to hear the case de
novo
o The delay of one year in giving the decision at the close of the prosecution’s case was
unreasonable and had prejudiced the Appellant
o It was unfair to order the Appellant to undergo a retrial

3) Purpose of Section 261: to prevent a re-hearing in certain cases

PP v Kulasingam [1974] 2 MLJ 26:
Held : The purpose od s261 is to prevent a re-hearing in certain cases where a re-hearing would result in
unnecessary hardship or injustice or unreasonable expenditure subject always to the guarantee that
the accused may demand for the re-call of certain witnesses.

3.1) Transferring of Magistrate to DPP department and vice versa

● The Judicial and Legal Service Department comprises both the Judicial Department and Legal
Department
o Judicial Department consists of Sessions Court Judges and Magistrates
o Legal Department consists of Deputy Public Prosecutors and Federal Counsels
● Officers serving in the Judicial Department are appointed and gazetted as Judges of Sessions Courts and
Magistrates and officers serving in the legal Department are appointed and gazetted as Federal Counsels
or Deputy Public Prosecutors.
● Because all these officers belong to the same parent service, they are transferable from one Department
to the other.
● So, does this cause “unnecessary hardship or injustice” if the DPP became the judge to try a case?
● Some case say yes while some cases say no:

This case says yes:

PP v Kulasingam [1974] 2 MLJ 26
Facts : Defence was called after 27 prosecution witnesses had testified and 98 exhibits were
produced. First defence witness was called then the trial was adjourned. The President
concerned was then appointed as DPP and received instructions not to proceed with the case. The
President succeeding him then ordered a trial de novo.

73
Note: The First Magistrate had not made a decision on whether there is a prima facie case as the case was postponed
for submissions to be prepared and made. In a situation like this, it would have been better for the First Magistrate to hear
the submission at the earliest possible date and made a decision on whether there is a prima facie cae. The delay of more
than one year for the Second Magistrate to call for the defence raises the issue of unfairness.

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 : On a subsequent dat, another President heard the case and was urged by the DPP to proceed
with the hearing. The Defence counsel objected as the previous President had ordered a trial de
novo.
: On yet another subsequent date, the original President presided ruled that since the Second
President had ordered a trial de novo earlier, he should then not continue where he had left.
Defence counsel sought for an adjournment for the matter to be referred to the High Court.
Held : It is perfectly proper for a transferred judge who now has to assume a new post as Federal
Counsel or DPP to complete any part-heard case originally heard by him provided this
does not result in miscarriage of justice or contravention of the rules of natural justice such
as when an officer was a previous judge in a state has now been appointed as a DPP in the same
state. The mere fact that due to his office as a DPP, he has access to investigation papers
concerning the case ought to disqualify him from hearing the case.
: In this case, the original president was subsequently appointed as DPP in the same state of
Negeri Sembilan, hence not in the interest of justice to proceed with hearing the case.
However, as large number of witnesses having been called and prima facie case had already been
established, the court had to consider the matter seriously. At the end, the Court ordered for the
trial to continue.74

This case says no:

Oh Keng Seng v PP [1976] 1 MLJ 143
Facts : The accused was charged for sedition. Then, the case was succeeded by a judge. The judge was
a former President of the Sessions Court in Seremban who was then attached to the AG’s
Chambers as a DPP in Alor Star, he decided to continue the hearing of the part-heart case. The
accused made an application to the High Court for disqualifying the succeeding from continuing
the trial and sought for a trial de novo to be held.
: In this case, the trial lasted for over a period of about a year and two months. Stage of the trial
was that the examinations of 12 out of 13 of the prosecution witness have been completed, the
last witness, the 13th witness, was waiting to be cross examined. The case stopped there and there
were not many exhibits.
: In the application, the defence counsel submitted that it was prejudicial to a fair trial to allow
the continuance of hearing by the same Sessions Court Judge, as the dual role of the prosecutor
as well as the presiding officer of the same court.
In response to the application objecting to it, the prosecution replied that the role of the Sessions
Court Judge has not be degazetted, and that the mere allegation of likelihood of bias is
insufficient.
Held : The Court ordered for a trial de novo. This is because the original President of the Sessions
Court has ceased to exercise the powers of President of the Sessions Court after the transfer, and
74
Hashim Yeop A Sani J in the High Court: “In the exercise of my revisionary powers I order that the trial of this case be
continued under the provision of section 261 of the Criminal Procedure Code on the following terms. To enable that justice
may be had the order of calling for the defence made on 20 th September, 1972, is set aside; the record of evidence of first
defence witness be expunged from the records, and the orders of “trial denovo” made on 21 st September, 1973 and 29th
January 1974 are set aside.”

Note: the High Court Judge used the phrase “finding of guilt” instead of prima facie case when referring to the original
magistrate’s decision of calling for the defence. Unclear if the continuance of trial was by another Judge or the original
Judge.

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 he is not competent to continue with the hearing of the part hear case. (disagreed with
Kulasingam.)
▪ Upon being appointed as DPP, the person is no longer in a position where he can command
the respect of the public as an impartial arbiter if he continues to hear the criminal case.
▪ Justice must not only be done but must also be manifestly seen to be done. This is a cardinal
principle in the administration of justice, and it must override all other considerations.
▪ Section 261 is intended to save time and money and to expedite the disposal of part-heard
criminal cases. This provision however should be exercised with caution.
▪ Succeeding magistrate or president who acts on the evidence of witnesses whom he has not
heard and seen is obviously at some disadvantage particularly in respect of the demeanour
and credibility of those witnesses.75

This case seems to reconcile the 2 conflicting cases above.76

Goh Chooi Guan v PP [1978] 2 MLJ 69
Facts :Seven accused persons were jointly charged for being in unlawful possession of a pistol and
ammunition without a licence. There were no prima facie case for six accused persons. The
Defence called for the 6th accused.
: The initial President was transferred from Sungai Petani, Kedah to Kuala Lumpur as a Senior
Federal Counsel. He applied to be allowed to continue the part heard case. The defence counsel
objected on the ground that the President was then a DPP and wanted the succeeding judge to
hear the case afresh, made application for de novo trial.
Issue :Whether upon the transfer of the President, Sessions Court, Sungai Petani to the Royal Customs
and Excise Department, Kuala Lumpur as a Senior Federal Counsel, he has ceased to exercise
any jurisdiction in the trial part-heard by him?
Held : The word “ceases to exercise jurisdiction therein’ in Section 261 means when a magistrate dies,
retires or resigns. In these situations, he would clearly be unable to continue hearing any part-
heard case by him. However, a case of transfer to another state in the same or similar post
does not fall under this section.
: Local limits of jurisdiction of Sessions and Magistrate’s Courts may be defined but once a
president or magistrate is gazetted, he is thus gazetted for the whole of West Malaysia and can
hear part-heard cases.
- This would accord to the basic notion that having seen and heard the witnesses he would be
the best person to continue and complete the case in the interest of justice with the view of
ensuring a speedy trial.

75
Note: Magistrates do need to observe the demeanour of a witness. They are to include remarks in his notes of evidence
if he is of the opinion that the demeanour of a witness under examination is material (Section 271 CPC). The records, in
words, are different from the Judge observing the witness himself, they have different connotations. It influences the
magistrate or judge when evaluating the witness with respect to the weight of his evidence at the end of the trial. It is also
a reason why Proviso (a) is there, so that the succeeding magistrate can resummons and rehear the witness.

76
(Note: ask yourself whether a Senior Federal Counsel is the same as a DPP, if yes, then he cannot be allowed to hear
the part-heard cases. The earlier two conflicting decisions had to be reconciled (Kulasingam and Oh Keng Seng)
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 : If the transfer is to the post of senior federal counsel or DPP, the president or a magistrate still
does not cease to exercise jurisdiction because he has not been degazetted. But the question of
public interest was also considered.
- The overriding principle is justice must not only be done but must manifestly and
undoubtedly be seen to be done.
- There need not be actual bias or prejudice, but it is sufficient if in the eyes of right-minded
persons there is such likelihood, in the circumstances, even though he is impartial as can be.
- It is not the mind of the President or the Magistrate that has to be looked into and whether
he favours one side at the expense of the other, but rather the impression which would be
given to the public at large.
- In the case of a DPP, whose duties are opposed to those of a President or a Magistrate
and who has direct access to investigation papers of criminal cases, it is undesirable in
the circumstances for him to sit on the Bench and continue the trial part-heard by him.
- The position of Senior Federal Counsel, who usually deals with civil matters, is slightly
different, especially those who are attached to Federal Ministries and Departments.
Their main duty is to give legal advice.
- There should therefore be no likelihood of offending the principles if he continues the part-
heard case. Nevertheless, that ought to be rarely exercised and only in exceptional cases as
the present case.
- Special circumstances in this case
● 6th accused has been in custody for nearly two and a half years
● If there is a de novo trial, it would affect the acquittal of six accused persons.
● The trial within trial was concluded
● The defence had already been called
● There was a long lapse of time
● There was no objection from the defence counsel earlier regarding the continuance of
hearing by the same judge
- Therefore, while a DPP ought to be disqualified from continuing a part-heard case, a Senior
Federal Counsel ought to be given a different consideration, especially if they are attached
to the Ministries.
- There ought to be no likelihood of offending the principles hence in this case, continuation
of hearing by the original judge was ordered.

Other cases
Mohd Amin bin Abdullah v PP [1995] 1 MLJ 612
Facts : The applicant had applied several times for the case against him to be heard afresh (de novo) as
the magistrate who had heard his case had been transferred as a DPP. The application was
rejected by the magistrate and a new application was made to the High Court. The sole ground
brought by the defence counsel was that the magistrate had become a DPP so she should
disqualify herself.
: The DPP in opposing the application, listed that

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 - The applicant had been under remand for almost 2 years so if trial de novo was ordered it
would result in grave injustice, it is a right of the accused to have the case resolved as
soon as possible.
- The applicant had closed its case for the defence and a trial de novo at his stage would
result in grave injustice against him
- Trial de novo would result in much wastage of time, energy & expenses on the part of all
parties as:
o 100 witnesses had been called by both prosecution & defence;
o 145 exhibits had been tendered;
o 2 witnesses were experts from abroad;
o 3 PWs had left for studies abroad;
o One PW had returned to Myanmar upon completion of contract with UM;
o 69 witnesses for the P & D were living/working outside KL; and
o Magistrate should be allowed to continue because she had seen/heard:
▪ The demeanour of and heard witnesses for the Prosecution and Defendant;
▪ The applications from the P & D to challenge the credibility of 6 witnesses.
Held : The magistrate (now a DPP) was ordered to be transferred to the judiciary immediately and to
continue with the hearing of the case. She should also complete the case as soon as possible and
within 3 months. If she is not transferred back within two months, the application for trial de
novo would be approved.

Abdul Hamid bin Udin v PP [2000[ 6 MLJ 334

Facts :Accused was charged for drug possession and was found guilty.
Issue :Whether the appellant was materially prejudiced because the prosecution’s and defence’s cases
were heard before different judges
: Whether it is necessary for the judge to re-summon witnesses and recommence trial under
Section 261 proviso (a) CPC.
Held : There was no demand was made by the appellant for any of the witnesses to be recalled and
reheard when the succeeding judge commenced his proceedings. It cannot be sad that the
accused was ipso facto materially prejudiced.
: Section 261 of the CPC does not provide for the recall of witnesses after the defence had been
called since the succeeding judge cannot change questions asked to the witnesses. The
succeeding judge can only proceed with the hearing and make a decision upon a review of the
written record of evidence from the preceding judge
: It is for the appellate court later to consider the issue of whether the accused has been materially
prejudiced. In this case, no material prejudice can arise from the simple fact of the absence of the
grounds of decision for calling of the defence since in any case the succeeding judge has to make
a decision upon the whole of the evidence, and since he had heard only the defence witnesses,
there was a natural advantage in favour of the defence.

● This case warned of the dangers of acting under section 261 of the Criminal Procedure Code
Teay Wah Cheong v PP [1964] 1 MLJ 21

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 Fact : In this case a President of the Sessions Court recorded evidence of eight witnesses. He was then
succeeded by the present President of the Sessions Court. The present President recorded further
evidence and came to a finding. In his grounds of judgment, the President stated there was only
one eyewitness to the accident, presumably the wife of Abdul Salam whose evidence was
recorded by the present President. However, the whole record shows there were two other
eyewitnesses whose evidence was recorded by the former President.
Held :. In such a case, unless it would cause hardship and great inconvenience to the accused person
and witnesses, it is much better for a President or a Magistrate to hear the case ab initio rather
than take over the recording of evidence from the other President or Magistrate as the succeeding
President or Magistrate cannot assess the value of the evidence recorded by his predecessor vis-
a-vis the credibility of the witness.

4) Part Heard Cases In The High Court

PP v Mohd Jon [1993] 1 MLJ 133
Held: Section 261 is not application for part heard cases in the high court.

● Section 18 of the Court of Judicature Act 1964 is similar to Section 261 of the CPC
Section 18 CJA: Proceedings in High Court to be disposed of by single Judge
(2) Whenever any Judge, after having heard and recorded the whole or any part of the evidence in a
proceeding, is unable through death, illness or other cause to conclude the proceeding, another Judge
may—
(a) continue with the proceeding from the stage at which the previous Judge left it and —
(i) act on the evidence already recorded by the previous Judge; or
(ii) act on the evidence partly recorded by the previous Judge and partly by himself; or
(b) resummon the witnesses and recommence the proceeding.

(3) Where the Judge acts under subparagraph 2(a)(i) he may, either on his volition or at the request of any
party to the proceeding, recall any of the witnesses as in respect of any part of the evidence already
recorded, or he may take their evidence afresh:

Provided that in respect of a criminal proceeding, the Court of Appeal and the Federal Court may, on
appeal, set aside any conviction had on evidence not wholly recorded by the Judge before whom the
conviction was had if such Court is of the opinion that the accused had been materially prejudiced
thereby, and may order a new trial.

● Illustrative cases:
Ranjit Singh Jit Singh v PP [2012] 10 CLJ 128
Lai Weng Keat v Pendakwa Raya [2016] 1 AMR 1 FC

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 Chapter 8: Matters In Relation To Trial: Defence of Alibi

1. Introduction
● Alibi means "elsewhere", at the time offence was committed.
● It refers to evidence which shows that by reason of the presence of the accused at a particular place..
at a particular time and date, he was therefore not at the place where the offence is alleged to have
been committed at the relevant time.
- A successful defence of alibi is a full defence, it means acquittal of the accused.
- Where alibi is proven, it means that the wrong person has been charged. It is advisable for the
prosecution to withdraw or drop the charge as it will result in an acquittal otherwise as alibi is a
complete defence.
● However, this defence is only applicable to offences which require the physical presence of the
accused person in the commission of the offence.
▪ There are offences which do not require physical presence of the accused person at the scene of the
crime, ie: cybercrimes

2. Defence of Alibi
● Section 402A(1) states that the court has an obligation to inform the accused to put forth the
defence of alibi. This is because not all accused particularly knows of this defence if they are not
legally trained.

Section 402A. (1) : The Court shall, at the time the accused is being charged, inform the accused
as to his right to put forward a defence of alibi.

2.1. Conditions for Defence of Alibi

● A defence of alibi is a relevant fact under s11 of the Evidence Act

Section 11 Evidence Act: When facts not otherwise relevant become relevant
Facts not otherwise relevant are relevant—
(a) if they are inconsistent with any fact in issue or relevant fact;
(b) if by themselves or in connection with other facts they make the existence or non-existence of
any fact in issue or relevant fact highly probable or improbable.

Illustration (a):

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 The question is whether A committed a crime at KL on a certain day. The fact that on that day A was at
Taiping is relevant.

● Conditions for a valid defence of alibi:

i. To be caught by the definition of alibi, the evidence must be evidence that the accused was at
some other place.
ii. The evidence must be accompanied with witnesses who may attest that the accused is at some
other place at a specific time and place.

R v Johnson [1995] 2 Cr App R 41

Held: To make a valid defence of alibi, it must be proven that the accused was:
i. Not at the crime scene, and
ii. At another place at a particular time and date

2.2. Notice of Alibi

● Section 402A(2) requires the accused to put forth a notice of his alibi during case management
process (even if not during police investigation, before trial). Basically, this is to provide the
opportunity for the matter to be investigated upon.

Section 402A. (2) : Where the accused seeks to put forward a defence of alibi, he shall put
forward a notice of his alibi during the case management process.

▪ However, during police investigations, if the accused was actually at a different place when the
crime was committed, the accused would usually reveal that fact to the police when being
questioned.
- Therefore, normally, the accused would have informed the investigation authorities of the
presence of an alibi even during investigation process.
- Be that as it may, the notice of such an alibi should still be given during CM process.

● However, even if such notice was not given during CM process, the accused may still adduce
evidence in support of alibi at any time during trial, subject to two conditions:
i. The accused had given written notice to the PP; and
▪ The notice must include:
a. Specific particulars of the place that the accused claimed he was at during
commission of offence
b. Names and addresses of any witnesses whom he intends to call to support his defence
of alibi
ii. PP was given reasonable time to investigate the alibi77

77
Previous Position of s 402A for Notice of Alibi:
▪ Previously this notice in writing was required to be served on the prosecution at least 10 days before the commencement of
the trial.
PP v Lim Chen Len [1981] 2 MLJ 41
Held : The pre-trial 10-day notice was mandatory. Section 402A (old version) was strongly worded, affording no
ambiguity.

Wong Kim Leng v PP [1997] 2 MLJ 97

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 ● Such notice is mandatory and non-compliance will render the evidence produced for the alibi non-
admissible:
Vasan Singh v PP [1988] 3 MLJ 412
Held : If it is evidence in support of an alibi and no notice under section 402A has been given,
the court then must exclude that part of the evidence from its consideration of the defence
evidence
2.3. Difference between bare denial of offence and defence of alibi

Difference Bare denial of offence Defence of alibi

how it is made "I did not do it" Accused person giving defence of alibi on his
"I was not there" own behalf
"I was elsewhere"  
The accused discloses where he was at the time
of the alleged offence. (the accused is giving
out evidence)
admissibility Admissible even without Admissible only with notice
notice

Vasan Singh v PP [1988] 3 MLJ 412

Fact : The accused claimed that he was asleep at the time of the incident. He then heard some noise,
so he came out and saw some persons were injured. During trial, the prosecution objected to
the defence of alibi because the accused had not given notice as required. The High Court
held that the prosecution's objection was sustained, hence the accused was found guilty. The
accused appealed.
Held : The Supreme Court distinguished between a bare denial of the offence and an accused person
giving alibi defence on his own behalf:

Held : If the accused is deprived of the opportunity to give notice of alibi through no fault of his, then any trial which
ends in evidence in support of the defence of alibi being statutorily barred from being given is clearly unfair and
unjust because it has obviously deprived the accused of an important right.

▪ Why? It is to:
i. Prevent fabrication;
ii. To provide time for the police to investigate; and
iii. For verification of the offender.
▪ However, this requirement has been repealed because the notice to the prosecution is now to be made during the CM process.

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 - If it is a bare denial, it is admissible.
- If the accused is disclosing where he was at the time of the alleged offence, notice to the PP
is admissible for it to be admissible.

2.4. Procedural rules governing the notice of alibi

● The notice can be signed by both the accused or by his counsel on his behalf.
Krishnan v PP [1981] 2 MLJ 121
Fact : PP raised objection that defence of alibi was wrongly admitted as the notice must be
signed by the accused himself and not by the counsel.
Held : Notice is merely to enable the prosecution to check upon the veracity of the alibi. It is
sufficient if it was signed on behalf of the appellant.

● Must a New Notice be Forwarded if the Charge is Amended?

▪ A charge may be amended in regards to a specific particular such as the time etc for the
offence. This may actually impact the availability of the defence of alibi. However, Court has
hold that s402A doesn’t require the accused to do so.

Ku Lip See [1982] 1 MLJ 194

Held : If an alibi notice had been served in relation to the original charge and the charge was
subsequently amended in the course of trial, the accused will be under no duty in
pursuant to s 402A with regards to the notice, merely because there was an
amendment. There is no requirement for a new or second notice to be given if the
prosecution had amended the charge.

Rangapula v PP [1982] 1 MLJ 91

Held : Section 402A is not applicable and notice need not be given in situations where:
a. the evidence of day or time in support of the evidence is different from that
specified in the charge; or
b. where the charge is amended in the course of the trial relating to the date, place or
time set out in the original charge.

▪ The court warned that the decision in Rangapula must be read with caution. (Nonetheless, if
an alibi notice has been served for the original charge, then the accused need not serve a
second notice when the prosecution amended the charge at the commencement or during the
trial)
Hussin bin Silit v PP [1988] 2 MLJ 232 (supreme court)
Held :It is not clear whether his Lordship in Rangapula meant that there are:
i. 2 exceptions to the mandatory rule of the notice of alibi; or
- if this was that case, it cannot be agreed as the law is clear that where the
defence is an alibi, mandatory notice must be given.

ii. 2 circumstances where the evidence adduced by the defence does not come within
the meaning of "evidence in support of defence of alibi" and so does not fall under
section 402A.
- if this was the case:
a. It cannot be accepted as a general application

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 b. It must depend on the facts and circumstances of each case,
considering, inter alia:
1. the nature of offence,
2. the particulars of the charge,
3. the materiality of the amendment,
c. the type of the defence of alibi

2.5. Effect of Non-Compliance with Section 402A

Rangapula v PP [1982] 1 MLJ 91/ Chee Chi Tiam v PP [1982] 1 MLJ 8878
Held : Non-compliance with the requirement of section 402A will render the evidence to support the
defence of alibi inadmissible

3. Burden of Proof for Defence of Alibi

● The burden of establishing defence of alibi is on the accused himself.

Section 103 Evidence Act: Burden of proof as to particular fact

The burden of proof as to any particular fact lies on that person who wishes the court to believe in its
existence, unless the law specifies otherwise.

Illustration (b):
B wishes the court to believe that at the time in question he was elsewhere. He must prove it.

● The principle on burden of proven held by cases can be summarized by below:

- to raise the defence of alibi, the defence has to prove it on the balance of probability. Then, the
court should consider if this alibi raise any doubt in the PP’s case. (ie, for the defence of alibi to be
valid, it must cast a reasonable doubt on the PP’s case)
- However, even if the defence failed to prove his alibi, the PP still has to prove the offence beyond
reasonable doubt to convict the accused.

Dato Mokhtar Hashim v PP [1983] 2 MLJ 232 FC

Held : The including words of section 402A(2) 'for the purpose of establishing his alibi' would
seemingly put a probative burden on an accused. Thus, if the accused wished to raise the
defence of alibi, he has a legal burden to prove the alibi on the balance of probabilities, he
cannot just create doubt.
: Nonethelss, the burden of proving an alibi undoubtedly lies on the accused setting up the
defence but even so, the burden of proof as to the guilt of the accused always remains on the
prosecution irrespective of whether or not the accused has made out a plausible defencw.

Yau Heng Fang v PP [1985] 2 MLJ 335 FC

Held : It is for the defence to adduce evidence to establish the defence of alibi.
: What the judge should consider is whether the evidence adduced by the accused for the
purpose of establishing his alibi had raised a reasonable doubt in the prosecution case.

78
Held : the evidence of alibi was rightly not allowed to be adduced, as the provisions of section 402A of the Criminal
Procedure Code had not been complied with.

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 ● Other case: (The cases below merely repeat the principles of the 2 cases above, you may ignore these)
Illian v PP [1988] 1 MLJ 421 SC
Facts : (not important)79
Held : As regards the defence of alibi, all that the accused person need to do is to raise a reasonable
doubt that he was not the person at the scene of the crime, then the proper approach is for the
judge to consider, at the close of the defence case, whether he had indeed succeeded in doing so.

Duis bin Akim v PP [2014] 1 MLJ 49

Held : Once an accused person pleads an alibi, he does not assume the burden to prove it is true.
The onus is on the prosecution to prove by evidence that the alibi is false and to place the
accused squarely at the scene of crime. The evidence of his alibi need only raise a reasonable
doubt that he committed the crime.

PP v Azilah Hadri [2015] 1 MLJ 617

Held : Mere assertion of alibi is insufficient to exculpate an accused, the alibi must be supported
with credible evidence that can cast a reasonable doubt over the prosecution's case. This
includes particulars of the place where he claimed he was at the time of the commission of the
offence.

PP v Gan Boon Aun [2017] 3 MLJ 12

Held : s 103EA is the provision governing the defence of alibi, whereas s 402A CPC only deals
with the procedure to be followed when the defence of alibi is introduced.

Chapter 9: Matters Relating to Trail: Witnesses and Tendering of Reports

Part 1: Witnesses
1. Introduction
Section 425 CPC governs calling, recalling, examining and reexamining of witnesses:

425.: Power of Court to summon and examine persons

Any Court may at any stage of any trial, inquiry or proceeding,
- summon any person as witness, or
- examine any person in attendance though not summoned as a witness, or
- recall and re-examine any person already examined, and
the Court shall summon and examine or recall and re-examine any such person if his evidence
appears to it essential to the just decision of the case.

● Section 425 covers two scenarios:

79
Fact: This is a drug trafficking case. The evidence brought in show that both accused were riding a motorbike in the
vicinity of a hospital and one of them passed a package to another accomplice. The accomplice then ran and was chased
after the police officer who were conducting a raid. One of them was arrested, the accused got away. Five months later,
the accused was arrested when he went to court for a traffic offence. He was identified by the police officers conducting
the raid as the one who got away. Prima facie case was established. Accused brought in the alibi defence saying that
during that time he was not in the vicinity of the hospital and that he was in Thailand.
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 i) Where the court exercise its discretionary power (observe the word “may”) to call or summon
any witnesses at any stage; and
ii) Where the court is obliged to summon (observe the word “shall”) witness where it appears that
it is essential to the just decision of the case
- This happens when the court is of the opinion that the evidence of a certain witness is
essential to the just decision of the case, it is bound to summon them and for this
purpose, trial can be adjourned.

2. Trial Court Empowered to Permit Recalling of Witnesses

● Under section 425, due to the word “may”, although the court has the discretion to recall, examine or
reexamine witnesses, the Court must do so when such witness is essential to the just decision of
the case.

Ramli bin Kechik [1986] 2 MLJ 33

Fact : This is a DDA case. The issue was whether the trial judge could allow the PP’s
application to recall the chemist, so as to enable new profile test to be carried out to
ascertain that the opium was extracted from PSL species (raw opium within definition of
s.2 DDA).
Held : The trial judge exercised its discretion correctly as he acted in the interest of justice,
which is the imperative limb of s 425.
: The purpose of s 425 is to enable the court to get at the proof and reach proper conclusion
at trial.
- S 425 applies to both witnesses from prosecution and defence. So, if there is a need to
recall any of the witnesses, the prosecution and defence may apply to the court for the
court to actually recall a particular witness to adduce additional evidence.
- If truth is adverse to the accused, then that's the purpose of trial - to get at the truth.

PP v Harilal Sachi [1995] 4 MLJ 661

Fact : This is a trial within trial, voi dires.80 The accused was sought to be impeached. The
Recording officer was called in, and the trial within trial was concluded. However, the
prosecution overlooked the fact that the accused's earlier statement was actually not
produced. The prosecution then sought for recall of recording officer. The Magistrate
denied the recalling of the witness (a recording officer).
Held : The Magistrate should have allowed the recall of the RO to produce and identify the
accused’s statement which was overlooked in the process of the trial within a trial
conducted before the magistrate.

80
Purpose of such trial within trial is to impeach a particular witness. The way to impeach a particular witness is to actually
establish within the trial within trial that the particular witness had made contradictory statements which were materially
different and there was no explanation for the material discrepancy. The earlier statement given by the particular witness
under s 112 CPC would be contrasted with the oral testimony or evidence given by that particular witness. That is how to
prove that this witness is not to be trusted.

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● The cases below are merely repeating the principle set out above, you may skip these:
PP v Phon Nam [1988] 3 MLJ 415
Facts : The Respondent was tried for trafficking dangerous drugs. The drugs had been sent to the
government chemist and had been received back with the two chemist reports. The reports
had been served on the respondent by a detective police constable. The respondent
acknowledged receipt by endorsing on the reverse of the reports. At the trial, the detective
police constable was not called by the prosecution to testify nor was he offered to the
defence at the close of the prosecution case.
Nevertheless, there was evidence to show that the respondent endorsed on the reverse of
the reports to acknowledge receipt. When the prosecution closed its case, the trial judge
drew the attention of the DPP to the fact that the detective police constable had not given
evidence whereupon the DPP applied for leave under s 425 of the Criminal Procedure Code
for the court to summon the detective police constable. The trial judge refused the
application and acquitted & discharged the respondent without calling for the defence. The
Public Prosecutor appealed.
Held : Although the power in s 425 is discretionary, the trial judge failed to exercise that
discretion judicially.
: The facts of the case did not justify the refusal by the judge. He failed to appreciate that
the evidence given by the investigating officer pertaining to the endorsements of receipt of
service by the respondent were admissible in evidence. No challenge was in fact made by
the defence counsel that the service was not properly effected. Evidence by the detective
police constable would therefore be a mere formality to confirm the endorsements that the
respondent had made. The judge clearly failed to appreciate this and consequently there
was a failure to exercise the discretion judicially.
: The court is bound to admit fresh evidence under s 425 of the Criminal Procedure Code
when it appears essential to a just decision of the case. As the powers under this section are
very wide, it is therefore necessary that great care be taken when exercising such
discretion. However, the second limb of S425 being an imperative provision, the court
must give serious consideration to exercising such powers if in so doing a just and proper
decision could be arrived at.
PP v Abdul Rahim bin Abd Satar [1990] 3 MLJ 188
Facts : The appellant was tried before the Sessions Court judge for an offence under the
Prevention of Corruption Act 1961. In the course of the prosecution's case, the
investigating officer ('IO') produced a list (P7) bearing the numbers of all the trap notes
recovered from the appellant's pocket. The IO had received this list from another officer,
Lai.

Counsel for the appellant objected to the production of P7 contending that as Lai was not
called but merely made available to the defence, the list was inadmissible as it is hearsay
evidence. The trial judge disagreed but exercised his power under s 425 of the Criminal
Procedure Code to call for Lai's evidence, to which the appellant's counsel also objected.
Issue : Whether P7 was inadmissible as being hearsay evidence.
: whether the sessions court judge was empowered under the circumstances to exercise
his power under s 425 of the CPC.

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 Held : The trial judge had considered it essential in order to arrive at a just decision to call for
the formal evidence of Lai, which he was entitled to do and bound to do so under s 425 of
the CPC.

PP v Ali Johar bin Abdul Jalil [2015] AMEJ 695

Facts : The Trial judge held that the prosecution is not bound to produce a witness by the name
of Rashidah since they did not offer her to the defence.
Held : The CoA held that the trial judge could have exercised his powers under s 425 CPC for
Rashidah to be produced to verify the truth of the appellant’s version of the facts, and not
to presume that Rashidah’s statement would not be available even if the case was
postponed. CoA observed that the trial judge did not appear to appreciate the importance
of Rashidah to the defence. The trial judge was eager for the prosecution to close its case
without having regard to fairness and justice for the appellant. The CoA took the view
that the appellant was denied a fair trial.

2.1. S 425 must be used judicially

● However, even if the judge can recall a witness under s425, such recalling of a witness should
only be used when the case really warrants it.

Pendakwa Raya v Kang Ho Soh [1992] 1 MLJ 360

Facts : (not important)81
Held : The very wide powers under s 425 of the Code should be very sparingly used and
only in emergency cases where “a matter arises ex improviso, which no human
ingenuity can foresee or injustice would ensue.”82

Rex v Bakar b Sahat [1951] 1 MLJ 202

Held : Judges are advised to exercise power under s 425 with caution and should hesitate to do
so after the close of the case for the defence without strong reasons.

● Especially in criminal trial, after the close of the case of either party, the court should not call
any witness unless strong and valid reason to do so, as it is not fair to repair the defects in your
case caused by your own lack of care after you have submitted everything.

PP v Abdul Hamid [1969] 1 MLJ 53

Held : In a criminal trial, at the close of the case of either party, the court should not call any
witness unless strong and valid reason to do so.

81
Fact: This is a S 39B DDA case. At the close of the case for the prosecution, the issue was whether in the case, the
unrebutted evidence of the prosecution warranted the conclusion that the accused was in possession of the drugs found
in the boot of the car. The defence contended that as a certain prosecution witness was not challenged or impeached, the
court should accept him as a witness of truth.

The accused was called on to enter his defence, and after the evidence for the defence had been completed, counsel for
the defence in his final submission contended that even if the prosecution did not accept the accused's story or if the court
harboured any doubts as to its veracity, the prosecution or the court could call rebutting evidence, presumably under s
425 of the Criminal Procedure Code .

82
referred to R v Frost
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 PP v Lin Lian Chen [1991] 1 MLJ 316
Facts : The accused was arrested at the Stadium Negara car park in Kuala Lumpur. The police
found 578.94g of heroin in the car the accused was driving and he was charged with
trafficking. During the prosecution case, it was revealed, inter alia, that:
i. the car in question was registered in the name of one Lim Hooi Yong but belonged
to James Goh Liong Sin. (the car was registered and belong by different people but
was driven by the accused)
ii. the registration number of the car was recorded in the register of the Hotel Emerald
against Room 414 and that this room was registered to one Koay Nian Taik.

The defence sought to admit, through the investigating officer, the cautioned statement of
the accused, to which the prosecution objected. To support its case that the drugs found in
the car driven by the accused was heroin, the prosecution called a government chemist
but only led evidence to show that the chemist had a degree in chemistry. At the close of
the prosecution case, the DPP urged the court to use s 425 and recall the chemist witness
so that his qualifications can be established.
Held : The court refused as the prosecution had already closed its case. It is not just and fair
to allow the prosecution, after it has closed its case, to make emergency repairs to defects
in its case caused by its own lack of care in the conduct of its own case. In an adversary
trial, the defence is entitled to the benefit of any doubt created in the prosecution case by
the prosecution itself.
Pendakwa Raya v Kang Ho Soh [1992] 1 MLJ 360
Held : S 425 is NOT intended to be used to fill in loopholes by the parties.

3. Other Provisions & Situations Allowing Recall of Witnesses

a) Section 261 CPC : When a case is part- heard

Section 261: Change of Magistrate during hearing

Whenever any Magistrate after having heard and recorded the whole or any part of the evidence in a
trial ceases to exercise jurisdiction in it and is succeeded by another Magistrate who has and who
exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his
predecessor, or partly recorded by his predecessor and partly recorded by himself, or he may re-
summon the witnesses and recommence the inquiry or trial:

Provided as follows:
(a) In any trial the accused may, when the second Magistrate commences his proceedings, demand that
the witnesses or any of them be re-summoned and re-heard;
(b) the High Court may, whether there be an appeal or not, set aside any conviction had on evidence
not wholly recorded by the Magistrate before whom the conviction was had, if that Court is of
opinion that the accused has been materially prejudiced thereby, and may order a new trial.

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 S261 CPC Proviso (a):
- Where there's a change of magistrate, the succeeding magistrate has the option to continue with
trial or to have a de novo trial.
- If continue, depending at what stage, the magistrate may decide to rely on whatever evidence
that has been taken down by the predecessor and then continue from there.
- Under the proviso, the accused or defence may demand for witnesses to be recalled or re-
examined.

b) Section 173 (j)(iii) and (l)this is an “ L ” CPC: During summary trials

Section 173(j)(iii) :
When the accused is called upon to enter on his defence, he may produce his evidence and shall be
allowed to recall and cross-examine any witness present in the Court or its precincts:
Provided that if the accused elects to be called as a witness, his evidence shall be taken before
that of other witnesses for the defence:
Provided further that any accused person who elects to be called as a witness may be cross-
examined on behalf of any other accused person
Section 173 (l):
(i) if the accused applies to the Court to issue any process for compelling the attendance of any
witness (whether he has or has not been previously examined in the case) for the purpose of
examination or cross examination or the production of any document or other thing, the Court
shall issue the process unless it considers that the application should be refused on the ground
that it is made for the purpose of vexation or delay or for defeating the ends of justice, in
which case that ground shall be recorded by it in writing.
(ii) the Court may, before summoning any witness on such application, require that his reasonable
expenses incurred in attending for the purposes of the trial be deposited in Court
c) Section 162 CPC- When the charge is altered or added after trail has started
Section 162: Recall of witnesses when charge altered
Whenever a charge is altered or added by the Court after the commencement of the trial, the
prosecutor and the accused shall be allowed to recall or re-summon and examine, with reference to
the alteration or addition, any witness who may have been examined, and may also call any further
evidence which may be material.

d) S 138(4) Evidence Act: For Further EIC or Cross Examination

Section 138.Order of examinations and direction of re-examination
(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or
for further cross examination, and if it does so, the parties have the right of further cross-examination
and re-examination respectively.

Part 2 : Tendering Reports of Certain Witnesses

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 1. Expert Witnesses under s. 399(1) CPC
● S 399(1) CPC allows the tendering of reports of the listed persons under (2) as evidence without
having to call the maker of the report as a witness:83

399.(1): Reports of certain persons

Any document ,
- reported by any persons mentioned in subsection (2) on any person, matter or thing
- report by the Registrar of Criminals on anything related to finger impressions submitted to
him for report
may be admitted as evidence in any proceeding unless that person or Registrar shall be required
to attend as a witness—
(a) By the court; or
(b) By the accused, in which the accused shall give notice to the Public Prosecutor not less
than three clear days before the commencement of the trial:
Provided always that in any case, if the Public Prosecutor intends to give in evidence any such
report, he shall deliver a copy of it to the accused not less than ten clear days before the
commencement of the trial.

● S 399(1) provides for situations whereby the stated persons under (2) be required to attend as a
witness:
(a) When required by court
(b) When required by the accused (with minimum 3 days' notice to PP)
● Flow in s 399(1) CPC if the Prosecutor wishes to tender expert report in evidence:
- Prosecution to serve a copy of such report on the accused not less than 10 clear days ‘before
the commencement of the trial’ if they intend to tender the report in evidence without calling
its maker as a witness
- Upon being served with such a report, the accused may in turn give notice of not less than 3
clear days before the commencement of trial to the PP if the defence requires the personal
attendance of the maker as a witness [see s 399(1)(b)].
● Where the maker’s attendance is required by the court for any reason, no notice of any form to
either party is needed.

83
Best Evidence Rule and s 399
1. Under the best evidence rule, you would require the person who makes the report to be called as a witness.
2. Section 399 allows dispensation of calling expert witnesses and allowing report to be tendered as a exhibit.
3. Hence, it is some form of an exception to the best evidence rule.

116 | Page
 Accused gives notice
10 days before 3 days or more
before trial for Court requires
Reports tendered as commencement of
maker of report to attendance of maker
evidence – s.399(1) trial – PP to serve
attend – no notice
accused

2. Who are Expert Witnesses under S 399(2)?

● Section 399(2):

399(2): Reports of certain persons

The following are persons to whom the provisions of this section apply:
(a) officers of the Institute for Medical Research;
(b) Government Medical Officers;
(c) chemists in the employment of any Government in Malaysia or of the Government of
Singapore;
(d) any person appointed by the Minister by notification in the Gazette, to be a Document
Examiner;
(e) Inspector of Weights and Measures appointed as such under any written law relating to
weights and measures in force in Malaysia; and
(f) any person or class of persons to whom the Minister by notification in the Gazette declares
that the provisions of this section shall apply.

● There are different position as to whether a science officer is a “government chemist” under s399(2).

Zulkifli bin Md Rodzi v PP [2013] 3 MLJ 745

Held : A “Pegawai Sains” is not a government chemist although his function is related to the
work of the chemist. In essence, if the report was not from the government chemist, it
is not admissible and has no relevance for purpose of s 399 of the CPC even though
it was couched as a report under the said section.84

84
In this case, the evidence of SP5 (the science officer) and exh P13 had to be expunged. The Court ruled, once it has
been expunged the prosecution case would have collapsed at the prosecution stage as the elements of the charge would
not have been established and the accused had to be acquitted and discharged.

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 Shahrizal bin Abdul Ghani v PP [2014] 1 MLJ 769
Fact : It was contended by counsel for the appellant, that from the evidence of PW7 (Director
of the Penang Chemistry Department), the deceased is a 'Pegawai Sains' and not a
government chemist under s 399(2)(c) of the CPC. Therefore, s 399 of the CPC does not
apply and the report remains inadmissible although no objection was taken.85
Held : The CoA disagreed and held that s 399(2)(f) envisages that the class of persons whom
the section may apply is not exhaustive, as Ministers are conferred the power to gazette
other person or other class of persons.
: The notification of declaration in Gazette Notification PU(B) 324 of 2004 which in
effect was the effective recognition that science officers employed by the chemistry
department was a class of persons to whom the provisions of s 399 of the Criminal
Procedure Code ('CPC') should apply and whose report might be given in evidence,
without the makers being required to attend as witnesses, provided that the precondition
of service of a copy of the report, as laid down in the said section, had been strictly
complied with

3. Issues Involving Report and the Maker of the Report

● Whether the prosecution having brought in the report as evidence, can subsequently call the
maker of the report as a witness instead of relying on the report?
Muhammed bin Hassan v PP [1998] 2 MLJ 273
Held : ‘service of chemist's report is no bar to the prosecution from subsequently calling the
maker of the report as a witness instead of relying on production of the report as
substantive evidence’

● Whether the report can still be produced as evidence when the maker is already called as a
witness? There are 2 contradicting positions:
Muhammad bin Hassan v PP [1998] 2 MLJ 273
Held : It would be wrong for a witness to produce a report as a substitute for oral
evidence, but that report could be used to refresh witness' memory or used as
corroborative evidence (s 157 EA)86
: In this case, there is nothing improper in the production of the report by PW3 (a
chemist) as maker thereof in the course of his giving evidence in court as it was clear
from the record that the report was produced ‘not even as corroborative evidence but was
merely mentioned & identified as one of the items handed over to the IO.’
Cf:
PP v Lam Peng Hoa [1996] 5 MLJ 405
Held : The Chemist report in this case is tendered as conclusive/substantive evidence of the
contents therein stated in compliance with s399(1) CPC which thereby precluded the
chemist from being called subsequently in person ‘to clarify’ the contents in view of
s 91 EA

● Whether Court can Summon Persons under s 399 to Produce the Report?
PP v Chan Keang Lean [2010] 1 CLJ 239

85
the counsel used Zulkifli bin Md Rodzi v Public Prosecutor [2013] 3 MLJ 745 to argue.
86
referred to Saw Thean Teik v PP [1953] MLJ 124
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 Fact : Out of frustration, Sessions Court judge issued summons to chemist to issue report under
s 51
Held : s 51 (summons to produce document) and 51A (delivery of certain documents) CPC
are not applicable to witnesses listed under s 399(2) to come out with the report. They must
be handled according to the provisions of s 399 CPC.

Part 3: Demeanour of Witnesses

1. Introduction
Section 271 CPC:
A presiding magistrate recording evidence of a witness may, at the conclusion of such evidence & at the
foot of notes thereof, record such remarks, if any, as he thinks material respecting the demeanour of
such witnesses whilst under examination

● This is regarding how the witness behaves in court while giving evidence, ie how the witness
answers the question, facial expression, body language

2. Importance of Demeanour
● Demeanor evidence refers to the non-verbal cues given by a. witness while testifying, including
voice tone, facial expressions, body. language, and other cues such as the manner of testifying.
● The way the witness answer questions can reveal more than the answer given.
● It enables the judge to size the credibility of the witness. Also, when a case is part-heard of appeal,
the remarks of the demeanor of the witness would be an important reference for the succeeding or
appellant judge to access the credibility of the witness.

Tengku Mahmood v PP [1974] 1 MLJ 110

Held : Demeanour is not always the touchstone of truth but one of the ingredients in arriving at
a finding of credibility

Bunya anak Jalong v PP [2015] 4 MLJ 72

Held : The impression as to demeanour from the audio-visual advantage is something not
easily capable of being scrutinised not only on appeal, but such impression may be
affected by any delay made in assessing and nooting that demeanour.
- That is why section 271 provides that the remarks are to be noted at the end of the
notes as to that witness' testimony.
- Without such contemporaneous note at the end of the notes about the witness’s
demeanour. There is no reason or references to support a decision or to explain why
such a decision was not biased. Especially when a trial can take a few years, such
notes is important as reference.

2.1. Assisting Succeeding Judges in Part-Heard Cases

Abdul Hamid b Udin v PP [2000] 1 LNS 198
Held : The extent to which the succeeding judge can rely upon the recorded testimony and the
weight to give to it must depend upon the nature of the recorded testimony, and the
challenge it is subjected to.
: If the personal credibility of the witness is challenged, his demeanour would be
material. An incoming judge would not necessarily be aware if demeanour of any

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 particular witness is important by a reading of the record unless a note of the demeanour
is recorded in accordance with s. 271 of CPC.
Sanusi Mat Karto v PP [2009] 7 CLJ 236
Fact : Succeeding judge did not recall witnesses to be heard. Issue of demeanour of witness
arose.
Held :In this case there was no statement on ‘demeanour’ recorded by the 1st Sessions Court
judge which shows that demeanour was not an important criterion in assessing the
witnesses’ credibility nor would their credibility be affected significantly by their
demeanour.

3. How Demeanour Remarks Should Be Made

● The Judge may note down his impression he has towards witness based on the witness’s demeanour
while examination, in the footnote of the note of proceeding.
● There are 2 conditions in which the judge should make a demenour remark.
i. Such remarks as to the demeanour of the witness should be written with particulars.
ii. Such remarks should be made contemporaneously.

i. Demeanour remark must be made with particulars

Under this requirement, the remarks must be written at the foot of notes and the judge must
demonstrate/ elaborate the remarks written:

David Anthony v PP [1985] 1 MLJ 453

Fact : Magistrate had written the word ‘demeanour’ 3 times in the marginal column
where she had recorded the evidence of a particular witness. Counsel queried that
whilst she was entitled to observe the demeanour of that witness but why hadn’t
she made any notes regarding her observation of other witnesses thus raising a
possibility of bias on her part.
Held : The object of s 271 CPC is to assist the appellate court in estimating the value to
be attached to the evidence of witnesses recorded by the inferior court for the
appellate court will not have the opportunity to observe the look/mannerisms-
hesitation, doubts, variations of language precipitancy, calmness or consideration.
In this case, the Magistrate should have elaborated more of the demeanour of the
witness instead of just putting the word “demeanour” there.

ii. Remarks Must be Made Contemporaneously

● Under this requirement, the remarks must be made contemporaneously as the witness is
testifying, then elaborate the remarks written whilst the judge is still fresh in his mind.

Ramanathan a/l Chelliah [2009] 3 MLJ 247

Fact : The respondent's argued that the trial judge had failed to make remarks or
observations of the witnesses' demeanour and that resulted in the judge making a
wrong evaluated finding.
Held : In this case, there were in fact demeanour remarks written in the notes of
proceeding. Based on the remarks, trial judge had scrupulously recorded her
observations and made remarks of the witnesses as the trial unfolded. These
remarks and observations were made contemporaneously.

4. Considering or Making The Demeanor Remarks Is Not Mandatory

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 ● Although demeanor note serves as a good refence, it is not mandatory to consider the demeanor of
witness when making a decision. It should only be considered under certain circumstances.

Abdul Hamid b Udin v PP [2000] 1 LNS 198

Held : The extent to which the succeeding judge can rely upon the recorded testimony and
the weight to give to it must depend upon the nature of the recorded testimony, and
the challenge it is subjected to.
: If the personal credibility of the witness is challenged, then his demeanour would be
material. An incoming judge would not necessarily be aware if demeanour of any particular
witness is important by a reading of the record unless a note of the demeanour is recorded
in accordance with s. 271 CPC.

Tara Singh Sidhu v PP [1949] MLJ 88

Fact : The trial court convicted the accused after careful consideration of the way the
complainant gave evidence & his demeanour – truthful witness.
Held : Whilst an appellate court will always hesitate to overrule the decision of a trial judge
based upon the demeanour of witnesses whom he had the opportunity of seeing in the
witness-box, in this case, it was unsafe to convict the appellants upon the uncorroborated
evidence of this particular witness.”

● Also, it is the judge’s discretion to make a demeanour remark or not under s 271 CPC. Not making
it would not prejudice the case. (though if the issue of demeanour of the witness arose, the
appellant judge will have nothing to refer to)

Ramanathan a/l Chelliah [2009] 3 MLJ 247

Held : The judge has the discretion to make a demeanour remark or not under s 271. Not
making any demeanour remar would not prejudice the decision.

Sanusi Mat Karto v PP [2009] 7 CLJ 236

Fact : Succeeding judge did not recall witnesses to be heard. Issue of demeanour of witness
arose.
Held : In this case there was no statement on ‘demeanour’ recorded by the 1st Sessions Court
judge which shows that demeanour was not an important criterion in assessing the
witnesses’ credibility nor would their credibility be affected significantly by their
demeanour.

Chapter 10 : Sentencing
1) Introduction
● Sentencing will only occur when the accused person is found guilty and found convicted. Thus, there must
be a conviction to warrant a sentence.
● Therefore, since child can be found guilty but not convicted, there is no sentencing for the child.
● Sentencing is not only limited to the statutory provisions governing sentencing (Chapter XXVII ss.281-299
of the CPC) but more importantly judges are to be guided by the aims and principle of sentencing.
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2) Types of sentences
Under the Malaysian criminal justice system, sentencing could include:
1. imprisonment
2. whipping
3. death sentence
4. rehabilitative counselling
5. community service
6. fines
7. police supervision
8. compensation and costs
9. good behavior bond

3) Choosing the proper sentence

● Under S183 of the CPC, once an accused is convicted, the Court shall pass sentence according to law. This
means that the sentence imposed will be within the scope provided under the punishment section for the
specific offence.

Section 183 CPC: If the accused is convicted, the Court shall pass sentence according to law.

● Meaning of “shall pass sentence according to law.”

Jafa bin Daud [1981] 1 MLJ 137:

Held : “A ‘sentence according to law’ means that the sentence must not only be within the ambit of the
punishable sentence, but it must also be assessed & passed in accordance with established judicial
principles.”

3.1) General principles for passing a sentence

Bohari Amit v PP [2005] 8 CLJ 43:
Held : The sentencing court must give reasons for its decisions, failing which it may be assumed that
it had not exercised its discretion judiciously.

PP v Tan Chee Seng [2004] 1 MLJ 392:

Held : Where two or more offenders are to be sentenced for participation in the same offence, the
sentence to be passed on them should be the same, unless there is a relevant difference in
their responsibility for the offence or their personal circumstances.

Mohd Jalani bin Saliman v PP [1997] 5 MLJ 551 (Abdul Malik Ishak J):
Fact : see below
Held : The punishment that should be imposed must be proportionate and according to the guilt
of the accused. It is now an elementary proposition in criminal jurisprudence that a sentence in
each case should be proportionate to the nature and gravity of the crime. Public interest must be
emphasized and when the court awards the maximum sentence provided by law, it should record
reasons for doing so.

3.2) Plea of Bargaining and the Power of court to sentence

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 When there is a plea of bargaining A lesser sentence may ensue, but the court is not bound to do so.

New Tuck Shen v PP [1982] 1 MLJ 27 (Wan Yahya J)

Fact : The Defence counsel argued that there was supposedly an agreement between DPP and defence
counsel that DPP will not go for a deterrent sentence. However, the DPP proceeded to ask for it
after defendant’s plead in mitigation.
Held : The right to impose punishment on a guilty party is absolutely the discretion of the court. It will
exercise that power judicially but will not tolerate any encroachment or even semblance of
encroachment either by the prosecution or the defence in respect of such right.
: An agreement between the prosecution and the defence as to the nature of sentence to be
imposed on the accused creates no obligation on the court and is good only for pricking the
conscience of the defaulting party.

4) Things the Court should consider in determining sentences

In determining the sentence, the court has to take note of:
i. the aim of sentencing and punishment section of the particular offence:
ii. the sentencing jurisdiction it has;
iii. the max/min sentence provided, if any

4.1) Consideration 1: Aims of sentencing

i. Retribution:
● This aim is to show the abhorrence of the society towards a particular crime. Its primary goal is to
punish the offender.

R v Sargeant 87 (adboted in Malaysian case of Hari Ram Seghal v P)

Held : The Old Testament concept of ‘an eye for an eye and tooth for tooth’ no longer plays any part
in criminal law. However, there is another aspect of retribution which is frequently overlooked,
which is the society must show its abhorrence of particular types of crimes through the courts,
and the only way in which the courts can show this is by the sentences they pass.
: The courts do not have to reflect public opinion when passing the sentence. On the other
hand, courts must not disregard it. Perhaps, the main duty of the court is to lead public opinion.

ii. Deterrence:
● This is to deter/prevent other members of society from committing the offence88
● This aim works at 2 levels:
a. offender himself; and
b. members of society who may be thinking of committing similar crimes

Re Ball 35 Cr App R. 164

Held : In deciding the appropriate sentence, a court should always be guided by certain
considerations. The first and foremost is the public interest. The criminal law is publicly
enforced not only with the object of punishing crime, but also in the hope of preventing it.
A proper sentence passed in public, serves the public interest in 2 ways:
87
(1975) 60 Cr App R 74
88
common justification for death sentence for drugs trafficking is to deter others from committing the same offence
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 - It may deter others who might be tempted to try crime
- Such a sentence may also deter the particular criminal from committing a crime again,
or induce him to turn from a criminal to an honest life. The public interest is indeed
served, and best served, if the offender is induced to turn from criminal ways to honest
living.

● Deterrent sentences have lesser value in respect of crimes committed in the spur of the moment. It
may be of considerable value for crimes which are premeditated.

Abdul Kassim bin Idris v PP [2007] 4 MLJ 738

Fact : the appellant killed the deceased by stabbing scissors in the deceased’s abdomen and
caused the deceased and her baby in the womb to die. The appellant appeal against the
consecutive sentence of s.32689 and s.31690 on the ground that the consecutive sentence
has a crushing effect on the appellant.
Held :. The appellant had acted in a despicable manner which is 'cold-blooded' and 'merciless'.
Finding of fact suggest that the accused had planned the offence beforehand, he was very
sane and clear in his mind when he inflicted the wounds
: The appellant deserved a deterrent sentence. Considering the gravity of the offence, the
sentences should serve the following two purposes:
a. Firstly, it should duly punish the accused for the grave crime that he had
committed and
b. secondly, in the interest of the public, it should be a warning and deterrence to the
potential offenders.

● However, in passing a deterrence sentence, the Court must always balance the interest of the accued
and public interest:
Pendakwa Raya v Muhammad Irwan bin Ishak [2015] 10 MLJ 458
Fact : The accused was charged for the offence of rape against a victim who was 12 years old.
The accused pleaded guilty and the sessions court judge sentenced him to 8 years
imprisonment. The DPP was dissatisfied with the sentence and appeal.
Held :The offence of rape is a serious, beastly and rampant especially to underage victims.
Hence, a deterrent punishment to deter any individuals from committing the same must
be made.
: It is the duty of the court to exercise balance between public interest and the accused
person's interest. However, public interest is different according to circumstances, time
and place and the nature of the case.
- In this case, the Court considered the accused person's admission, the fact that he
was 19 years old when the incident took place, was a disabled person and was a
first-time offender and concluded that the sentence of 8 years imprisonment and 3
strokes of rotan were appropriate. 

iii. Incapacitation/prevention
● This aim is to incapacitate or prevent the convicted accused from committing further crime.
For example, a criminal is unable to commit further crime if put behind bars.
● For offenders whom neither deterrence nor rehabilitation works and usually considered as hardcore
criminals, the only protection the public has is for such persons to be locked up for a long period.
89
Voluntarily causing hurt by dangerous weapon or means
90
Causing death of a quick unborn child by an act amounting to culpable homicide
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 iv. Rehabilitation:
● This aim is to ‘cure’ or guide the offender to turn around and become a useful member of society.
This is premised on the fact that the offender can be rehabilitated91
● This type of sentence aims towards rehabilitating or reforming the offender into becoming worthy
citizens in the future and usually the main consideration where the offender is of tender age or
comparatively young

4.2) Consideration 2: Jurisdiction of the courts in mode of punishment

● Usually, the penal statutes would:
- allocate the various type & quantum of punishment,
- state varying mode of specifying how these quantums are to be applicable.

For example:
The two different phrases ‘shall be liable’ vs ‘shall be punished with’ are used in indicating the
mode of punishment to be imposed result in different connotations.

● In general,
o “shall be punished” implies that it is mandatory (no discretion) for such punishment to be imposed
o “shall be liable” gives a discretion to the court to give such punishment or to alternate it with some
other order.

Public Prosecutor v Hassan Ali a/l Abdul Razak [2016] 12 MLJ 283
Fact : In this case, the accused was sentenced under s.6(1) of the Corrosive and Explosive Substances
and Offensive Weapons Act 1958.On appeal, one of the issues was whether the imprisonment
term is mandatory.
Held : Since the words ‘shall be liable’ is used in the said s.6(1) of the Act, it is meant to allow the
court with discretion to pass the sentence as it thinks fit after assessing the available
evidences and particular fact of the case. In other words, the imprisonment was not
mandatory.

Public Prosecutor v Omar bin Rudding [2017] 3 MLJ 524

Facts : The accused pleaded guilty to s.304(a) of the Penal Code, convicted and sentenced to 12 years
imprisonment with effect from the date of arrest. Dissatisfied with the lenient sentence, the
prosecution appealed.
Held :The very concept of judicial discretion involves a right to choose between more than one
possible courses of action upon which there is room for reasonable people to hold differing
opinions as to which is to be preferred.92

91
Seen in the case of drug addicts, instead of sending them to prison, they are sent to rehabilitation centers.

92
[cont’d] That is quite inevitable. Human nature being what it is, different judges applying the same principles at the same time in the
same country to similar facts may sometimes reach different conclusions … Therefore sentences do vary in apparently similar
circumstances with the habit of mind of the particular judge…”

P/s: When ruling this, the court was guided by the observation of Raja Azlan Shah in Bhandulananda Jayatilake v PP: “Is
the sentence harsh and manifestly excessive? We would paraphrase it in this way. As this is an appeal against the exercise by
the judge of a discretion vested in him, is the sentence so far out-side the normal discretionary limits as to enable this court to
say that its imposition must have involved an error of law of some description?
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 : Sentencing is a matter of judicial discretion of the trial court. The court was of the view that the
sentence of 12 years imprisonment in the circumstances of the case was adequate. It was not
manifestly or grossly inadequate.

4.3) Consideration 3: Maximum / Minimum Punishments

● There are 3 principles when the Court considers the sentence:
i. Maximum punishment is usually reserved for only the worst case.
ii. in imposing the sentence, the Court must also consider the “normal sentence” the Court would
impose in similar case. [Bhandulananda Jayatilake v PP]
iii. The extent of the punishment has to be judged upon the circumstances of each case and the
court should not award the maximum punishment laid down for an offence, but should
apportion the punishment after considering all the circumstances having a bearing upon it. In
this case, the sentences were varied and substituted accordingly.

Mohd Jalani bin Satiman [1997] 5 MLJ 551

Facts : This case concerns an appeal against the decision of the magistrate's court where the appellants
were convicted and sentenced for three charges of cheating punishable under s.420 of the Penal
Code read with s.34 of the Code.
Held : General principles applied when reviewing the sentences imposed by the trial court:
▪ The court should not award the maximum punishment laid down for an offence, but should
apportion the punishment in each case after considering all the circumstances having a
bearing upon it.
▪ The court must always bear in mind the necessity of proportion between an offence and the
penalty.
▪ There is no hard and fast rule. The courts are expected to observe a desirable proportion
between the gravity of the offence and the punishment for it.
▪ The quantum of punishment to be awarded lies at the discretion of the court BUT that
discretion has to be exercised judicially and the punishment should not be either too
lenient or too severe.
▪ The punishment imposed must be proportionate to the nature and gravity of the crime and
according to the guilt of the accused.
▪ Public interest must be emphasized and when the court awards the maximum sentence
provided by law, it should record reasons for doing so.

Sia Ah Kew [1974] 1 MLJ 125

Fact : The accused persons had pleaded guilty to the charge of kidnapping. 93 They were convicted &
sentenced to death by the trail court.94 On appeal, the appellate court reduced the sentences to

93
Section 3 of the Kidnapping Act: “Whoever, with intent to hold any person for ransom, abducts or wrongfully restrains or
wrongfully confines such person shall be guilty of an offence and shall be punished on conviction with death or imprisonment for life
and shall, if he is not sentenced to death, also be liable to caning.”

94
Judgment of the trial court:
"The crime of kidnapping for ransom is a detestable crime. It is motivated by avarice. It is carefully planned with great deliberation
and executed with complete disregard for the anguish and suffering of not only the victim but also of all those who are near and dear
to him. The mental torture which the victim's family undergoes while apprehensively awaiting his fate equals or even surpasses that
undergone by the victim while in captivity. Kidnapping for ransom is a crime which no civilized society can tolerate and it should be
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 that of life imprisonment & to various number of strokes of the cane because the case was not
the worst of its kind.
: Relevant facts:
▪ The accused entered the house of the victim, armed with pistols and a dagger.
▪ The victim was taken to a house where he was kept blindfolded for nine days.
▪ When sleeping, the victim’s hands and legs were also tied with straps.
▪ During the negotiations for the victim's release, the accused persons first demanded
$500,000. Eventually at a later meeting, the ransom was agreed at $50,000.
▪ The victim was released two days after the ransom was received.
Held : “It is an established principle of sentencing that the legislature in fixing the maximum penalty
for a criminal offence intends it only for the worst cases.
: However, in the case of kidnapping for ransom, the discretion given to the courts as
regard to the sentence is very limited in scope. The maximum sentence prescribed by the
legislature would be appropriate where the manner of the kidnapping or the acts or
conduct of the kidnappers are such as to outrage the feelings of the community.
: Thus, the sentence was revised from death penalty to Life Imprisonment + caning

Aisyah bt Mohd Rose v Public Prosecutor [2016] 1 MLJ 840

Fact : This is a criminal breach of trust case. At the session court, each appellant was sentenced to 10
years’ imprisonment for the first charge and to 5 years’ imprisonment for the second charge, with
the sentences to run concurrently. The appeal to HC was dismissed. At the COA, appeal against
the sentence was allowed.
Held : It is trite that an appellate court would not interfere with the sentence imposed by the trial judge
unless the trial judge had wrongly applied the principles of sentencing.
: In this case, it was apparent from the grounds of judgment that the trial judge had not
considered the mitigating factors before passing the sentence. The reasons as to why the
appellants deserved the maximum sentence for the second charge was also conspicuously
absent from the grounds of judgment.
:Hence, the sentence was revised to 5 years for the first charge and 3 years the second charge,
with the sentences to run concurrently

5) Sentences available to the courts

As mentioned, there ae 9 types of sentences. The important ones will be explained below.
1. imprisonment
2. whipping
3. death sentence
4. rehabilitative counselling
5. community service
6. fines
7. police supervision
8. compensation and costs

firmly rooted out. It is therefore imperative that the courts should impose deterrent sentences on persons convicted of kidnapping so
that it is brought home to all would be kidnappers that it does not pay to commit this crime in Singapore…”

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 9. good behavior bond

5.1) Death Penalty

● This is provided under many sections/ act, which include:
- S.302 PC (murder)
- S.364 PC (kidnapping)
- S.3 Kidnapping Act
- S.39B DDA

● Exemption from this sentence:

s.275 CPC : Pregnant women cannot be sentenced to death.

● Mode of death sentence:

s.277 CPC: 95
The convict shall be hanged by the neck till he is dead, but shall not state the place where nor the time
when the sentence is to be carried out.

● Provisions as to execution of sentences of death: s.281 CPC (too long to be included here)

5.2) Imprisonment
● There are different definitions of “life imprisonment” under different Acts:
S.3 Criminal Justice Act : Imprisonment for life = 30 years
96
S.2 FIPA : Imprisonment for life = natural life (be jailed until die)

● Imprisonment can also be passed under different modes such as imprisonment for definite period or
imprisonment in default of payment of fine
● When sentence of imprisonment begin?
S.282(d) CPC : every sentence of imprisonment shall take effect from the date on which it was passed
unless the Court passing the sentence otherwise directs.

Since 282(d) says a sentence can begin from the date it was passed “unless the court directs otherwise”,
it can begin from other dates as well. In practice, sentences of imprisonment may take effect:
i. From date it is passed;
ii. From date of arrest;
iii. From date of conviction;
iv. From date of trial

5.2.1) When more than one sentence of imprisonment can be imposed

● In situations where one or more charges are tried together, sentences can run either:
i. concurrently (run at the same time, aka concurrent sentence) or
ii. consecutively (run one after another, aka consecutive sentence)97
95
S.277: When any person is sentenced to death the sentence shall direct that he be hanged by the neck till he is dead, but shall not
state the place where nor the time when the sentence is to be carried out.
96
Firearms (Increased Penalties) Act)
97
Exp: AB is charged simultaneously for the following:
Robbery – 5 years;
Assault – 3 years;
Outrage modesty – 3 years.
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 Tuan Mat bin Tuan Lonik v Publlic Prosecutor [2009] 4 MLJ 81
Fact : The appellant, who pleaded guilty to all the five charges of rape was sentenced to 15
years imprisonment and 10 strokes of the rotan for each offences. Each sentence was to
run consecutively from the date of arrest. (in total: 75 years and 50 strokes) The appellant
appealed to the COA.
Held : (allowing the appeal)
: Under S.282(d) CPC98, the judge has the discretion to decide when a sentence
should begin. On the facts, the sentences of the first and second charges were to run
consecutively99 and the sentences of the third, fourth and fifth charges were to run
concurrently with the sentence of the second charge.
: This is because, by factually reducing the length of time of the appellant's incarceration
to 30 years, and with deductions for good behaviour, the appellant would be about 70
years of age when he is released from incarceration. Even if the appellant lives at the age
of 70 years, the likelihood of him besetting and causing trauma to anyone was slim. The
orders not only had considered public interest but also made the sentence sensible and
fair.

On the issue of whipping:

: The HC had erred in affirming the imposition of the 50 strokes of rotan for the five
charges handed down by the trial court. The combined sentences of whipping in effect
had contravened s.288(5)100 CPC which only allows for the total of 24 strokes of rotan to
be imposed.
: The probability of the 24 strokes of rotan being executed to completion against the
appellant is next to impossible as the appellant’s age was 48 years old and the first charge
would take 15 years to exhaust, the maximum strokes that he would endure would only
be four strokes.
: Hence, upon the appellant attaining the age of 50 in two years, no sentence of whipping
shall be executed under s.289101 CPC despite the imposition of 24 strokes
If sentence runs concurrent, the maximum sentence will subsume the other sentences so in effect the offender will observe at most 5
years of imprisonment;
If sentence runs consecutive, the sentence run one after another. So 5 + 3 + 3 = 11 years altogether [max].

98
Provisions as to execution of sentences of imprisonment
99
Purpose of the sentence of the second charge to run consecutively with the first charge: to discourage the type of criminal
conduct, reflect the overall seriousness of the behaviour and the need to protect females. If not, the appellant in no time would be back
on the street, not only free to terrorise his family members but also exact revenge on the wife who lodged the police report against the
appellant.
100
s.288(5): When a person is convicted at one trial of any two or more distinct offences any two or more of which are legally
punishable by whipping, the combined sentences of whipping awarded by the Court for any such offences shall not exceed a total
number of
- twenty-four strokes in the case of adults and
- ten strokes in the case of youthful offenders.

101
S.289: No sentence of whipping shall be executed by instalments, and none of the following persons shall be
punishable with whipping:
(a) females;
(b) males sentenced to death;
(c) males whom the Court considers to be more than fifty years of age, except males sentenced to whipping
under section 376, 377c, 377ca or 377e of the Penal Code
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 5.2.2) How to decide when the sentence shall begin? One transaction rule & the totality principle
[Bachik bin Abdullah Rahman v PP]
Held : Under S.282(d) CPC, a sentence of imprisonment shall take effect from the date on which it
was passed unless the court passing sentence otherwise directs. (for example under section 292
CPC)102
: In deciding whether the terms of imprisonment should be consecutive or at another date, the
court should be guided by the one transaction rule and the totality principle.

● The Court in Bachik explain these principles as followed: (the case below were all cited)

i. One-transaction principle
Kanagasuntharam v PP103
Held : Under the one-transaction principle, when two or more offences are committed
in the course of a single transaction, all sentences in respect of these offences
should be concurrent rather than consecutive.
: However, this rule is not absolute as there are situations where consecutive
sentences are necessary to discourage the type of criminal conduct being
punished. Thus, even if a series of offences are considered one transaction,
consecutive sentence may still be passed if the facts of the case warrants it.

● For example, concurrent imprisonment may be imposed where offences were committed
in a single transaction & tried together. This happens when the accused is
- tried for more than 1 offences (under s165104 CPC) or
- jointly charged with other accused (under s170105 CPC)

● A series of offences is said to be “one transaction” when there are 4 elements for the
series of offences:
Jayaraman v PP [1979] 2 MLJ 88
Held : For there to be “one transaction”, four elements must be present:
a. proximity of time,
b. proximity of place,

102
S.292 CPC: the court may order the imprisonment to commence either immediately or at the expiration of the
imprisonment to which he has been previously sentenced.

Section 282(d) prescribes the general rule that a sentence of imprisonment shall take effect from the date on which it was
passed unless the court passing the sentence otherwise directs. Section 292 is a specific provision dealing with the date
of commencement of a sentence of imprisonment of a person who is already undergoing imprisonment. Under this
section, the court may order the imprisonment to commence either immediately or at the expiration of the imprisonment to
which he has been previously sentenced.

The combined effect of ss 282 and 292 CPC is that unless the court imposing a sentence says anything to the contrary,
the sentence runs from the date on which it was passed.

103
[1992] 1 SLR 81 at p 83:
104
Trial for more than one offence
105
When persons may be charged jointly

130 | Page
 c. continuity of action and
d. continuity of purpose or design

ii. Totality principle

Under the totality principle, there are two limbs of “sub-principles”:106
a. totality ensures proportionality between the offence and sentence,
b. totality prevents a court from imposing a crushing sentence. 107

● So, in short, under this principle, the sentence imposed have to be proportionate to the
offence (1st limb) and the sentence imposed should not have crushing effect. (2nd limb).
● Thus, where total consecutive punishment is excessive, imprisonment may run
concurrently.
● This case explained the principle in details:

Kanagasuntharam v PP
Held : A cumulative sentence (aka consecutive sentence) may offend the totality
principle if
- the aggregate sentence is substantially above the normal level of sentences
for the most serious punishment for the individual offences involved, or
- its effect is to impose on the offender 'a crushing sentence not in keeping with
his records and prospects.
: When the court pass a sentence, it must consider the total length of sentence,
especailly when consecutive sentences is imposed, to ensure that the sentence
properly reflects the overall seriousness of the behaviour.
: However, to decide if a sentence is “crushing”, the court cannot decide
mathematically by reference to the offender's age and the length of sentence to be
served but by the circumstances of the case. (ie, just because the sentence is long,
it doesn’t mean it is “crushing”. If the offence is serious enough, long-term
imprisonment can be allowed) 108

5.2.3) Situations where sentence may be ordered to run consecutively

● In relation to the principles above, there are 3 situations where the court may order the
sentence to run consecutively in defying the totality principle:
i. Bachik bin Abdullah Rahman v PP:

106
DA Thomas in Principles of Sentencing (2nd Ed) at pp 57–58

107
A crushing sentence is commonly defined as a sentence which will induce a feeling of helplessness in the offender and destroy
any reasonable expectation of a useful life after release. BUT, if the court is passing this sentence, the court will need to consider
that the offender has, by his criminal acts, forfeited any right to have his sentence reduced on that account

108
The Court cited R  v  Vaitos (1981) 4 A Crim R 238 at p 301 (O'Bryan J) which sentenced a young raper to many
years. The Court justified:

“I have some difficulty appreciating the concept that a richly deserved sentence, not manifestly excessive, should be
disturbed because the person upon whom the sentence is imposed may feel crushed by it. While it is quite true that the
offenser has to face a very long term of imprisonment before he will be released and because he is a comparatively young
man, many of the best years of his life will be spent in custody. However, from the community point of view, his detention
for a very substantial period is necessary to protect females from his criminal behaviour.”

131 | Page
 if the offence committed is grave enough (such as rape)

ii. PP v Mohamad Khairi bin Bahauddi/ Malek Ridzuan bin Isroll v PP

the series of offences committed are not dependent on each other (ie you don’t have
to commit the second offence to complete your first offence. For example, raping a
bank officer while robbing a bank)

iii. Iwan Bujang Dara v PP:

When the series of offences are committed on 2 or more victims although the
offences were committed under one transaction.

Bachik bin Abdullah Rahman v PP [2004] 2 CLJ 572

Fact : The accused pleaded guilty to a rape charge. The Court sentence him to 15 years
imprisonment and 12 strokes of the rotan. At that point of time, the accused was
serving another sentence of 16 years imprisonment for another offence. The Court
ordered the sentence to take effect consecutively to the 16 years imprisonment
term which the accused was still serving (for another rape offence that was
committed on different time). The accused now appealed to have the sentence
served concurrently.
Held : (dismissing the appeal)
: In this case, both the offences were executed in the same manner and are of the
same severity and are unrelated.109 It cannot be denied that the cumulative effect
of both the sentences will have a crushing effect on the accused bearing in mind
his age. But this effect must be balanced against the seriousness of the offences
committed by him and the need to protect young females from him.

Public Prosecutor v Mohamad Khairi bin Bahauddin [2015] 9 MLJ 656

Fact : Respondent was convicted for an offence of rape and two offences of robbery.
There were 5 charges and 3 victims: 1st – rape of A; 2nd – robbery of A; 3rd –
robbery of B; 4th – rape of C; 5th – robbery of C at the same time and place.
He was sentenced to 15 years of imprisonment and 5 strokes of whipping in the
first charge while in the second charge, he was sentenced to 5 years of
imprisonment and 2 strokes of whipping. The sentences in both cases were
ordered to run concurrently. The prosecution appealed against the sentences, and
prayed for all the sentences to run consecutively. (15+5;5+2)
Held : allowing the appeal
: In the present case, concurrent sentence is not sufficient to reflect the
seriousness of the offence. Rape and robbery are heinous crime which must be
severely punished. In committing the crimes, the respondent had also used
dangerous weapon to threaten the victims. The victims' lives were at stake during
the incidents.
: Even though the rape and the robbery were committed on the same victim in the
first and second charge of the first case (A), and in the first and second charge of
the second case (C), and committed at around the same time and at the same
place, there was no necessity to commit the second offence after committing the
first. Both the offences did not depend on each other. They were obviously

109
A concurrent term of imprisonment would effectively result in the appellant not being imprisoned at all for the second offence.
132 | Page
 distinct in nature and unrelated. The offence of rape and robbery could not be said
to be subsidiary to one another. Different victims were involved in both cases.
Each and every element of the one transaction principles must exist for the one
transaction rule to apply and for a concurrent sentence to be imposed.
: The sentences passed must truly reflect the fact that in this case the respondent
had committed three distinct offences and that he was being duly punished. This
could only be achieved by ordering the sentences to run consecutively.

Malek Ridzuan bin Isroll v Public Prosecutor [2015] 9 MLJ 674

Fact : The appellant had pleaded guilty for various offences charged against him 110.
The sentences were to run separately, i.e. a total of 36 years and 3 months of
imprisonment and 19 strokes of whipping. The appellant appealed against the
sentences, prayed for the sentences to run concurrently taking into account that he
had pleaded guilty at the very early stages.
Held : dismissing the appeal
: It was obvious that all the offences in all the cases were separate and distinct. It
was justified to order the sentences to run consecutively.
: The seriousness of the offences committed by the appellant warranted a lengthy
imprisonment sentence. Even though the sentences imposed will have a crushing
effect on the appellant, the seriousness of the offences committed and the demand
of protection of the public interest forfeited the interest of the appellant.111

Iwan Bujang Dara v Public Prosecutor [2017] 3 MLJ 630 (COA)

Fact : The appellants had pleaded guilty in the HC to a first charge of committing gang
robbery with murder and a second charge of voluntarily causing hurt during the
robbery at a house. The murdered victim was a man; the person injured was his
wife. The court sentenced each of the appellants to 22 years’ jail and 12 strokes of
the rotan on the first charge and 12 years’ jail and 10 strokes of the rotan on the
second charge. The sentences were ordered to run consecutively. Appellants
appealed against the sentence.
Held : dismissing the appeal
: Sentences of imprisonment should not be made to run concurrently where the
offences were committed on two or more different victims even though they were
committed in the same transaction. 
: The appellants might feel crushed by the long term of imprisonment (34 years in
total), but in the larger interests of the public, it was necessary that they were kept
away for that period of time to protect the public from their criminal behaviour.

5.3) Whipping
● Provisions governing whipping and the execution of whipping: section 286-291 of CPC
Aspect Sections (under CPC) and Explanation
Place for Section 286:
110
The offences include rape, committing carnal intercourse, impersonating public servant, and stealing.
111
The appellant could be equated to that of a sexual predator. He attacked young victims. The appellant was a real threat to
the public and to young girls in particular. He is not suitable to be in the community. He must be incarcerated from the society for a
longer period of time.
133 | Page
 executing sentence When the accused is sentenced to whipping, the sentence shall only be executed at
of whipping such place and time as the Court may direct.

time of executing Section 287

whipping (1) When the accused is sentenced to whipping in addition to the imprisonment,
whipping shall be inflicted after the expiration of 7 days from the date of the
sentence.

If the imprisonment extends to 14 days, whipping shall be inflicted after the

expiration of 14 days from the date of the sentence

If there is an appeal, the whipping would be suspended from that point of time
until the sentence is confirmed by the appellate court.

(2) whipping shall be inflicted as soon as practicable

Tuan Mat bin Tuan Lonik v PP112

Held: The trial judge was obviously wrong in ruling the whipping to run
consecutively.

Mode of execution Section 288

of whipping (1) If the sentence of whipping is imposed, the number of stroke must be specified in
the sentence. Maximum stroke:
▪ Adult : maximum 24 stokes
▪ Youthful Offender : maximum 10 strokes

(2) Whipping shall be inflicted on the part of the person as the Minister responsible
for public order from time to time generally directs

(3) The rattan used for whipping shall not be more than half an inch in diameter

(4) For offenders under section 403(Dishonest misappropriation of property),

404(Dishonest misappropriation of property possessed by a deceased person),
406(Criminal breach of trust), 407(CBT by carrier),408(CBT by clerk), 409(CBT
by public servant) or 420(Cheating and dishonesty including delivery of property)
of Penal code, whipping shall be inflicted in the way of school discipline with a
light rattan

(5) (reiterate the point that total whipping sentence should not exceed 24 strokes for
adult, and 10 strokes for youthful offender)

People exempted Section 289: Sentence of whipping forbidden in certain cases

from whipping No sentence of whipping shall be executed by instalments. Whipping can be imposed
on all offenders except:
(a) A Female
112
[2009] 4 MLJ 81.
134 | Page
 (b) A male who has been sentenced to death
(c) A male who the Court considers to be more than 50 years of age, except males
sentenced to whipping for sexual offences113

medical officer Section 290

must present (1) Before whipping is carried out, medical examination must be carried out. The
medical officer must ascertain and certify that the person is fit to undergo
whipping.
(2) If during the execution of a sentences, a medical officer certifies that the offender
is not fit to undergo remainder of the sentence of whipping, whipping shall be
finally stopped.
(3) If the sentence of whipping is done to a youth offender under s293, a Medical
Officer need not be present, but such whipping shall not be inflicted unless the
youth offender is in a fit state of health to undergo the sentence.

What happens if a Section 291:

person is not in a (1) When whipping is wholly or partially prevented from being executed (exp: when
fit state to be the offender is not fit), the offender shall be kept in custody until the court which
whipped? passed the sentence can revise it.
The court has the discretion to either remit or sentence the offender, instead of
whipping, to imprisonment for a term which may extend to 24 months in addition
to any other punishment which has been sentenced to the same offence

(2) However in doing so, the court cannot exceed the term the person is liable in law,
cannot exceed the punishment provided under the section nor exceed the court’s
jurisdiction to sentence.

5.4) Fine
● Fine can come in forms of Pecuniary penalty, forfeiture or compensation adjudged upon conviction of
an offence
● Section 283 CPC deals with the imposition of the sentence of fine
Section 283(1)
(a) Where no sum is expressed in statute, amount of fine is unlimited but should not be excessive.
(which is a question of facts)

(b) The court in passing the sentence of fine, has the discretion do all or any of the following things:
(lays down specific considerations that the courts are empowered with):
(i) Allow time for the payment of fine
(ii) Allow instalments
▪ Depending on the amount of the fine and also the person and whether the person can
come out with the money immediately or not.
(iii) Issue a warrant for the levy of the amount by distress and sale of any property belonging
to the offender
(iv) Order imprisonment in default of payment of fine
113
under Section 376, 377C, 377CA or 377E of the Penal Code.
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 (v) Direct body search for money found on him
(c) (provides for the scale for imprisonment in default)

5.5) Compensation Order and Costs

This is provided by many sections under CPC:
Section 173A(3) the court may order the offender to pay compensation for injury or for loss or to pay the
costs of the proceedings
Section 294(2) gives the discretion to the court to direct the offender to pay costs of prosecution or
some portion of the same by instalment etc.
Section 426 Court has power to order compensation and costs for prosecution after conviction of the
offender
Section 427 payment of expenses of prosecutor and witnesses for both the prosecution and for the
defence, from the consolidated fund
Section 430 reward for unusual exertion
Section 431 compensation for family of person killed in arresting
Section 432 where any person is ordered to pay any sum of money by way of costs or compensation,
the court may in its discretion do all or any of the following things:
(a) Allow time for the payment of the sum
(b) Direct payment of that sum to be made in instalments
(c) Issue a warrant for the levy of that sum by distress and sale of any property
belong to that person
(d) Imprisonment in default of payment (Scale of imprisonment in default of
payment is provide under section 432(2))
(e) Direct the person be searched

5.6) Police Supervision

● This is an additional order of control after offender has repeatedly committed an offence where both
previous and current offence are punishable for imprisonment of two years or more.
● Conditions to grant police supervision:
o The offender must have been convicted of an offence previously, which is punishable with
imprisonment of 2 years or more
o The offence which the offender is presently convicted is also punishable with 2 years’
imprisonment or more
● Reason: the offender has the propensity to repeat the offence. So police supervision is to make sure he
does not have the opportunity to commit further crime.
● Governed by section 295 - 299 of CPC
Section 295(1) Section 295:Court’s Power to order
(1)(a) : The High Court/Sessions Court may direct the person be subject to
the supervision of the police for a period of not more than 3 years
commencing immediately after the expiration of the sentence passed on
him
(b) : The Magistrate Court may direct the person be subject to the police
supervision for a period of not more than 1 year commencing
immediately after the expiration of the sentence passed on him.

136 | Page
 Section 295(1A): sexual offender114 shall be subjected to the supervision of the police for a period not
less than one year and not more than three years, no matter he has previously
been convicted of any offence of not .

Section 295A The Court may in addition to the police supervision order made under section
295(1A), may order a period of rehabilitative counselling within the period of his
detention

Section 296: This section spells out the duty of a person subject to supervision which can be
Obligations of summarised as followed:
person subject to S296
supervision
(1) : Notify place of residence
: Inform the relevant parties if there is a change of residence
(2) If the person is a male, report to police station monthly

Section 297: If not complying with the order, the offender is ;iable to imprisonment for one year
Non-compliance unless he can prove to the satisfaction of the court that he did his best to act in
with the police conformity with the law.
supervision order

5.7) Good Behaviour Bonds

● Purpose: to bind the offender to ensure that he is in good behaviour during the period of time.
● This order is available to all offenders regardless of age.
● It is applicable where any offence is committed, unless specifically excluded by the penal provision.
For example, section 298A(2) of Penal Code (causing disharmony or prejudicing maintenance of unity)
● When giving this order, the Court must consider:
character, antecedents, age, health, mental condition of the offender, trivial nature of nature any
extenuating circumstances of the offence
● If a person is given a bond of good behavior, the conviction cannot be recorded
Public Prosecutor v Tan Eng Hock115
Held : An order of binding over under section 173A of the CPC after recording a conviction is illegal
and the defect cannot be cured by section 422.

● A bond of good behavior can be given under 3 sections:

No Type of offender Sections
1 All S173A(2):
When a charge is proved but the court is of the opinion that
- it is inexpedient to inflict any punishment or any other than a
nominal punishment, or
- it is expedient to release the offender on probation,
the court may without proceeding to conviction, make specific order,

114
Section 376, 377C, 377CA or 377E of the Penal Code.
115
[1980[ 2 MLJ 15.
137 | Page
 either
(a) Dismissing the charge or complaint after an admonition or a caution
to the offender, or
(b) Discharge the offender conditionally on his entering onto a bond
with or without sureties, to be of good behaviour. The bond shall
not exceed three years

2 Youth Offender Section 293(b):

The court may order a youth offender to his parents or relative and they
Section 2 of CPC: will be responsible for the child’s good behavior.
Youthful offender is a
person above the age of
18 and below the age of
21 (thus minor below 18
can’t use this)
3 First offender Section 294
(1) If a person is a first offender and it is expedient that the offender
be released on probation of good conduct, the judge may release the
offender with an order for bond of good behavior, having considered:
o This is only available only to adult offenders >16.
o The Bond period is not specified, unlike s173A.
o The conviction must be recorded
o Consideration has to be given to the character, antecedents,
age, health or mental condition of the offender or to the
trivial nature of the offence or to any extenuating
circumstances
o Applicable when offence is punishable with imprisonment,
unless excluded by penal provision

5.7.1) Difference between Section 173A and 294

o Section 173A is intended for cases of minor nature and warrants exceptionally mild treatment
affecting adults and youth offender where the nature of offence and extenuating circumstances
peculiar to the offender in question justify and even require that NO CONVICTION be recorded
against him. Alternatively, he can be either admonished or cautioned or discharged conditionally
o Accordingly, conditions, if so attached to order under section 173A cannot be of punitive nature.
o On the other hand, s294 is specifically for first offender above 16 years old.

6) Orders under Child Act 2001

● Generally, if the offender is a minor (below 18 years old), an sentence can be passed under the Child Act
in lieu of the Act which provides for the offence:
● Section 91(1) of Child Act:
If a Court for Children is satisfied that an offence has been proved, the Court has the power to
(a) Admonish and discharge the child
(b) Discharge the child upon his executing a bond to be of good behaviour
(c) Order the child to be placed in the care of a relative or other fit and proper person
138 | Page
 (i) for such period to be specified by the Court; and
(ii) with such conditions as may be imposed by the Court;
(d) Order the child to pay a fine, compensation or costs
(e) Make a probation order
(f) Order the child to be sent to an approved school or a Henry Gurney School
(g) Order the child, if a male, to be whipped with not more than 10 strokes of light cane.
(i) within the Court premises; and
(ii) in the presence, if he desires to be present, of the parent or guardian of the child;
(h) If the child is aged 14 or above and the offence is punishable with imprisonment, impose
imprisonment sentence on the child subject to subsection 96(2), on any term of imprisonment which
could be awarded by a sessions court
▪ Section 96(2) imprisonment shall not be ordered if the child can be suitably dealt with all the
other order
● Section 91(2) of Child Act:
The words “conviction” and “sentence” shall not be used in relation to a child dealt with by the Court for
Children. The terms below shall be replaced with:
o Convicted : A child found guilty
o Conviction: A finding of guilt
o Sentence : Order made upon a finding of guilt

● Section 91(3) of Child Act

o A finding of guilt shall be disregarded for the purposes of any written law which
▪ Imposes any disqualification or disability upon a convicted person or
▪ Authorises or requires the imposition of such disqualification or disability

● Cases
o Public Prosecutor v The Offender116
Facts : The offender who was 14 years 1 month when he committed the offence, was charged for
possession of dangerous drugs punishable under section 39A(2) of DDA. He was found
guilty. The Sessions Court judge had entered a ‘conviction’ and ‘sentenced’ a juvenile
under section 39A(2) of DDA. The judge further held that section 39A(2) overrides the
provisions relating to the punishments of juvenile offenders under the JCA 1947.
Held : The High Court set aside the conviction and substituted it with a ‘finding of guilt’. The
words “conviction” and “sentence” shall not be used. Further, section 39A(2) of DDA does
not override the provisions relating to the punishment under the JCA. The Act gives optional
power to the juvenile court either to proceed with the various types of punishment provided
under the JCA or impose the punishment provided for by the law under which the offender is
charged. In this case, after taking everything into consideration, the court sent him to an
approved school.

o Govindarajoo v Registrar of Criminals117

116
[1998] 4 MLJ 152.
117
[1974] 1 MLJ 112.
139 | Page
 Facts : In this case, the applicant applied for an order of mandamus to direct the Registrar of
Criminals to deliver to him his fingerprints, photographs and negatives thereof taken when he
was charged in the Juvenile Court, Kuala Lumpur.
Held : As the applicant could not be convicted in the Juvenile Court, the particulars of the
applicant were not registrable under the Registration of Criminals Ordinance 1948 and
therefore, all records and fingerprints of the applicant had to be returned to him.

● Whether alternative order under Child Act 2001 can be used where imprisonment is mandatory under
any Act/Provision which provide for the offence? Yes, Child Act is still applicable as long as it is
justified to do so. (except when the law expressly oust the applicability of the Child Act, as learnt in Child
Law)118

o Nordin Yusmadi bin Yusoff v PP119

Facts : The appellant was convicted by the Sessions Court for a statutory rape of an underage girl.
The appellant was then 19 years old, a first offender and had pleaded guilty to the court.
After considering the circumstance, the trial judge, presumably under section 40 120 of
Juvenile Courts Act 1947 (now is the Child Act), ordered the appellant to be detained at the
Henry Gurney School until he reached the age of 21 years.
Issue : Whether the Sessions Court was justified in exercising her discretion under section 40 of
the JCA 1947.
Held : Although a youth above the age of 18 can be sent to prison, in cases where the court is of
the view that it would be undesirable to send him to prison, a Sessions Court or a Magistrate
of the first class is conferred with special and additional powers to order such a youthful
offender to be detained in a Henry Gurney School until he attained the age of 21 years.
Therefore, section 40 of JCA (replaced with the Child Act) is applicable even in cases
where imprisonment is mandatory, provided that circumstances of the case justify it.

7) MITIGATING FACTORS
● Plea in mitigation is not expressly provided in CPC, but it is referred to in section 176(2)(r) among other
particulars to be recorded by the presiding judge

Section 176: Particulars to be recorded

(1) During a proceeding, the Court shall keep record of the particulars of the case by using a charge sheet.
(2) Such particulars include
(r) the Court’s note on previous convictions, evidence of character, the victim’s or a member of his
family’s impact statement, and plea in mitigation

118
For example, some provisions under the Dangerous Drug Act provided that the DDA should be applicable “not
withstanding any other law”. Phrases like “not withstanding any other law” has the effect of oust the jurisdiction of Child
Act. If such phrases is not mentioned, usually the Child Act is applicable.
119
[1997] 3 MLJ 754.
120
Section 40 of JCA: “Nothing in this Act other than sections 15 and 16 shall affect the powers of the High Court and all the powers
which may be exercised under this Act by a Juvenile Court in respect of a juvenile offender may in like manner be exercised by the
High Court; and, in addition, the High Court, a Sessions Court and a Court of a Magistrate of the First Class shall have power to order
the detention, in a Henry Gurney School, up to but not after his attainment of the age of twenty-one years, of any person who has
attained the age of eighteen years but has not attained the age of twenty-one years at the date of making such order.”
140 | Page
 o This indicates that mitigating factors are actually a practice to allow the accused/defence counsel to put
forth the mitigating factor before sentence is imposed or passed
o This practice is accepted as a matter of course

● In cases where death is the only possible punishment (mandatory death cases), plea of mitigation may be
irrelevant for sentencing purposes, but may be important for purposes of application for pardons subsequent
to convictions.
● Allowance for mitigation is not an exclusive entitlement for the offender if deterrent objective of
punishment should be given priority.

7.1) Common Mitigation Factor

Mitigating factors in a case may be numerous and dependant of peculiar. The common mitigating factors
are:

a. Age of offender
▪ Youth or old-age can be a mitigating factor except where the offence is grave
▪ Youth has been described as one of the most effective mitigating factors
▪ Age becomes less effective as the offender grows older but if offender is very old, it may be a
mitigating factor itself
▪ Please go through all cases to see how the Court decided differently based on age and the
offences committed. You would also observed some judgment the Court give weight on
Public interest rather than the age of the offender:

▪ Tukiran bin Taib v PP121

Facts : This case concerns theft of coconuts. The accused person is at most 18 years old in
this case. He was a first offender. The trial court sentenced him to 4 months
imprisonment.
Held : It is very desirable that young offenders between the ages of 17 and 21 years, who
are also first offenders, should be kept out of prison, if possible. It would be more
beneficial to the accused, and in the long run to the community at large, to send the
accused person to an advanced school rather than to prison.
: The appellate court in this case therefore quashed the sentence of 4 months
imprisonment and ordered that the accused be committed for 3 years to the Henry
Gurney School.

▪ Re Johari bin Ramli122

Facts : In this case, the accused who was 21 or 22 years of age was convicted on a charge
of possession of house-breaking implements, an offence under s. 28(1)(ii) of the
121
[1955] MLJ 24.
122
[1956] MLJ 56.
141 | Page
 Minor Offences Ordinance 1955. He had a number of previous convictions but details
of these were not recorded by the Magistrate who only noted: “The accused admits
several (six) previous convictions for theft, house-breaking, possession of stolen
property, etc.” The Magistrate sentenced the accused to 10 days’ imprisonment.
Held : On revision, the Judge called for a Probation Officer’s report and after considering
the report, he set aside the sentence and substituted an order binding over the
accused in the sum of $500 to be of good behaviour and to come up for sentence
when called upon and in the meantime to be under the supervision of a
Probation Officer.

❖ As stated above, the Courts are usually prone to keep youth away from prison, but when the
offence is grave, youth no longer serves as effective mitigation. The Court usually impose
imprisonment for young offender on the premise of public interest or the offence warrants
deterrence.

▪ Tan Bok Yeng v PP123

Facts : The second accused in the case was 20 years old at the time of the commission of
the offence. He was charged for robbery under section 392 of the Penal Code.
Held : The Court held that although the law does provide for a lesser sentence or no
sentence at all imposed upon persons of young age, however, emerged in recent
years in the society that certain species of crimes which the alacrity of mind and
body, the dare, dash and defiance of the youth alone is capable of performing
and producing.
: It is not merely the correction of the offender which is the prime object of the
punishment, the considerations of public interest have also to be borne in mind.
In certain types of offences, a sentence has got to be deterrent so that others who
are like-minded may be restrained from becoming a menace to society.
: As such, the second accused was sentenced to two years imprisonment.

▪ PP v Yeoh Eng Kuan124

Facts : The respondent, a 20 year old youth, was convicted of an offence under section 39A
of the Dangerous Drugs Ordinance 1952. The court ordered that he be bound over for
2 years. The prosecution appealed against the inadequacy of the sentence.
Held : The appellate court held that the facts of the case clearly suggest that the respondent
is not merely an addict but an operator of somewhat greater significance. He
may be a pusher, or maybe even a trafficker, considering the amount and
quantity of the drugs found in his possession.
: Therefore, the Court set aside the order made by the subordinate court and imposed
on the respondent a sentence of imprisonment for 3 years.

▪ Public Prosecutor v Yap Huat Heng125

123
[1972] 1 MLJ 214.
124
[1976] 1 MLJ 238.
125
[1985] 2 MLJ 414.
142 | Page
 Held : In certain specific offences, the courts should not place too much emphasis on the
fact that the offender is young and a first offender.
: Public interest demands that in such cases a deterrent sentence ought to be given.

▪ PP v Teh Ah Cheng126
Facts : The offender was 18 years 5 months. He was charged for the possession of
firearms and ammunition. The trial judge released him on two years good
behaviour bond. The prosecution appealed to the High Court.
Held : The court held that if a person is not too young to have in his possession and to
handle firearms, and he does so unlawfully, then he is certainly not too young to
suffer the penalties prescribed by law.
: If age alone were the sole determining factor in the severity of punishment in
offences involving firearms and for not imposing a corrective custodial sentence, then
it may not be impossible to envisage the horrifying spectacle of the community
having on its hands and in its midst unrestrained brood of gun-toting pistol-packing
prone thugs of tender years on the prowl.
: The order of good behaviour bond was set aside and the offender was sentenced to 3
years imprisonment on each charge.

▪ Koey Teng Soon v PP127

Facts : The appellants were charge for murder. The first appellant was 18 years old and the
second appellant was 17 years old at the time of the commission of the offence.
Counsel for the appellants urged the court to consider the ages of the appellants who
are considered to be young at the time the offence was committed.
Held : The court held that when a court considers sentencing, public interest should be
balanced with the interest of the appellants. In this case, the public interest far
outweighed the mitigating factors put forward for the appellants. The serious
injuries inflicted that resulted in the death of the victim, the appropriate sentence
would be a custodial sentence of 9 years imprisonment on each of the appellants.

▪ PP v Sharithan a/l Pachemuthu128

Facts : The offender who was 17 years and 10 months old when the offence was
committed, was charged for possession of drugs. The offender pleaded guilty to the
charge of possession. The judge accepted the plea and found him guilty. In
mitigation, counsel for the offender requested that the offender be detained in the
Henry Gurney School. The DPP asked for a deterrent sentence as the offender’s
probation report showed that the offender had committed 3 previous offences of
armed robbery.
Held : The court took into account the age of the offenders in deciding the sentence.
Having regard to the background and character of the offender as disclosed in the
probation report and the nature of the offence charge, it was discovered that the
offender could not be suitably dealt with any other way except with the punishment

126
[1976] 2 MLJ 186
127
[2000] 2 MLJ 129.
128
[2000] 5 MLJ 368.
143 | Page
 provided under the DDA, even though he had pleaded guilty and had cooperated with
the police.
: The option of probation, fine or committed to a place of detention, approved school
or Henry Gurney is not suitable as this is a very serious offence. Therefore, the High
Court convicted the offender and sentenced him to imprisonment for 6 years and 10
strokes.

❖ Likewise, if you’re old but you did a gross offence, you deserve no mercy.
▪ Sidek bin Ludan v Public Prosecutor129
Facts : The accused person was charged with 2 charges of rape of 9 year old. The
offender was aged 63 years. The trial judge imposed 7 years imprisonment on each
offence to run concurrently. The accused appealed to the High Court
Held : The High Court held that in committing rape any degree of violence amounting to
hurt used will invariably render the rapist liable to a higher punishment under section
376 of Penal Code.
: No extenuating circumstance apart from Age of 63 barring him from being whipped.
The High Court did not disturb the sentences but order them to run from the date the
High Court dismissed the appeal.

b. Record of offender
▪ If he has previous conviction for similar offence, that will be an aggravating factor
▪ Conversely, if it is his first time, it can be a mitigating factor
▪ The cleaner the record, the higher possibility of mitigating and vice versa.

PP v Leo Say130
Facts : In this case, a firearm was discharged by the first accused in an attempt to commit
robbery with the result that a person met his death. All the accused persons pleaded
guilty to the charge. The second and third accused had no previous criminal record.
Held : The court held that the fact that a man has not much of a criminal record or none at
all, is not a powerful factor to be taken into consideration in a case of such gravity.

▪However, if the offence is grave, record does not matter much as public interest overrules.
Public Prosecutor v Tan Eng Hock131
Facts : The respondent was charged with the theft of a motor car to which he pleaded
guilty. On his plea, he was convicted and bound over under section 173A of CPC.
The prosecution appealed against the sentence.
Held : The court held that car theft is a fairly common offence and invariably it leads
to more serious crimes. Having regard to the number of cases of car theft, a
sentence of binding over is neither appropriate nor relevant enough. Sentence
varied to 18 months imprisonment.
c. Plea of guilty

129
[1995] 3 MLJ 178.
130
[1985] 2 CLJ 155.
131
[1970] 2 MLJ 15.
144 | Page
 ▪ This factor is mitigating on the basis that it not only saves the country a great expense of a
lengthy trial but also saves time and inconvenience of many, particularly of witnesses
▪ As to the weight of mitigation, it depends on each case
▪ Usually, a discount between a quarter to one-third of sentence is considered appropriate132

Wong Keng Liang v Public Prosecutor133

Held : It is a trite law that accused’s guilty plea is a mitigating factor

PP v Wan Nasrul Nizam bin Wan Hizamuddin 134

Facts : The respondent was charged at the Sessions Court under section 6(1) of the Corrosive
and Explosive Substances and Offensive Weapons Act 1958. The respondent pleaded
guilty to the said charge. The respondent was then released on bond of good behaviour
for a period of 5 years. The prosecution appealed against the inadequacy of the sentence
Held : In the present case, the court takes into account the plea of guilty and the respondent
being a firs offender as relevant mitigating factor. In order to achieve the right balance
between deterrence and rehabilitation, it was appropriate to consider the rehabilitative
potential of the respondent.

▪ However, the guilty plea does not automatically entitle the convict to a lesser punishment as
other factors such as seriousness of the crime and public interest may outweight plea of guilty as
mitigating factor:

Bachik Abdul Rahman v PP135

Held : One of the principles in sentencing is that a convicted person should be given a discount
for pleading guilty. A reduction of about one third of the sentence that would otherwise
have been imposed is normally given.
: However, this is not a strict rule and the court may, in the exercise of its discretion,
refuse to grant any discount.
: The severity of the offence, the existence of a previous conviction, demands of public
interest for a deterrent sentence and the absence of a good defence or of other mitigating
factors may outweigh the mitigating effect of the guilty plea. So, the guilty plea does
not automatically entitle the convict to a lesser punishment.

Public Prosecutor v Marjan bin Nasir136

Facts : The accused was originally charged with the offence of murder. Nevertheless, an
alternative charge under section 304(a) of the Penal Code was offered to the accused. The
accused pleaded guilty to the alternative charge and was convicted. The accused urged
the court not send him to prison but to order him to be sent to the Henry Gurney School.
The accused submitted that he was a first offender and that he had pleaded guilty
promptly once the alternative charge was offered to him.

132
Supreme Court in Mohd Abdullah Ang Swee Kang [1988] 1 MLJ 167.
133
[2013] 4 MLJ 263.
134
[2017] 10 MLJ 68.
135
[2004] 2 CLJ 572.
136
[2016] 12 MLJ 590.
145 | Page
 Held : The High Court held that it had given sufficient consideration to the plea of guilty of
the accused that was entered at the earliest opportunity and the fact that he was first
offender. However, in very serious cases, a plea of guilty and being a first offender
cannot necessarily qualify as a significant mitigating factor to save an accused from
going to prison. The accused was sentenced to 7 years imprisonment.

d. Effect of Conviction and Sentence

▪ A sentence may be mitigated if sentence would affect the offender especially if he is the sole
breadwinner. But again, this is inapplicable where offence is of serious nature
Public Prosecutor v Loo Choon Fatt137
Facts : In this case the respondent had pleaded guilty to a charge of possession of dangerous
drugs. In mitigation, he stated that this was his first offence and that he was threatened
that if did not sell the drugs he would be assaulted.
Held : Considering the background of the accused in the case, the court held that fining him
would be ineffective as also a long prison sentence would be inappropriate. Therefore,
the accused was sentenced to imprisonment of 6 months.
e. Circumstances before commission of offence
▪ Circumstances before commission of offence is something which the court may take into account
especially when there is something that pushed the person towards committing the crime, such
as:
- family hardship or crisis
- provocation. Usually provocation may be raised, not just as defence but in mitigation and
usually considered in offences involving hurt.
- financial difficulties,
- psychological crisis
▪ Like with other factors, this mitigating factor is of little or no effect if offence is serious.

f. Health of offender
▪ If the offender himself is suffering from certain kind of illness, which requires constant care or
medication, that could be a factor to mitigate the sentence

Section 173A(2):
If having regard to, inter alia, the health of the offender, the Court think it is inexpedient to
inflict any punishment or any other than a nominal punishment or that it is expedient to release
the offender on probation, the Court may
(a) dismissing the charge or complaint after an admonition or a caution to the offender
(b) discharge the offender conditionally on his entering into a bond of good behavior

Section 294(1):
For first offenders, if having regard to, inter alia, the health of the offender, the Court think it is
expedient that the offender be released on probation of good conduct, the Court may, instead of
sentencing him at once to any punishment, direct that he be released on his entering into a bond
of good behavior.
137
[1976] 2 MLJ 256.
146 | Page
 ▪ This factor is usually considered when deciding whether to release on bond of good behaviour
▪ If the accused person was also injured, it may be given due consideration.

g. Behaviour of offender after committing offence

▪ If the accused person shows repentance or remorseful, it may be a mitigating factor
▪ For example: Cooperation with police in investigation, eg assisting the police in the investigation

h. Other factors (as the list is not exhaustive)

▪ Other factor can include
: difficulty in understanding a particular law - Mark Koding v PP138
: Status of the offender. For example, when a person is has a respectable status such as
politician or high ranked officer, the Court may impose a lighter sentence to “save his face”.

8) AGGRAVATING FACTOS
● Aggravating factor are factors which would make the Court think harsh/more severe punishment should be
imposed

8.1) Common Aggravating Factor

a. Previous conviction or bad record

▪ In a proceeding, the prosecution may produces a copy of previous convictions of offender kept
by the Registry of Criminal, to ask for a harsher sentence.
▪ If accused does not admit the records, proof of its authenticity is necessary
▪ Previous bad record of the offence may include other antecedents such as previous detention etc.

b. Prevalence of rampancy of offence

▪ If an offence is rampant, the prosecution will call for deterrent punishment as priority
Mohd Irwan Shah bin Zainaul lwn Pendakwa Raya139
Public Prosecutor v Wong Chak Heng140
Held : There are some offences which are particularly rampant in Malaysia such as robberies,
offences involving serious violence, use of a weapon to wound, extortion, burglary of
private dwelling houses, the stealing of car accessories from parked vehicles, motorcar
theft and purse or handbag snatching in the streets or in stores.
: Crimes of these kind are rife at the present time. Thus, when a person is charged with
any of the offences, then the Courts inevitably must take a serious view.

c. Status of offender

138
[1983] 1 MLJ 111.
139
[2017] 11 MLJ 415.
140
[1985] 1 MLJ 457.
147 | Page
 ▪ If the offence has a relatively high status, it may aggravate sentence. For example, if a person is a
teacher and committed rape on his student, this may be a aggravating factor. (but in some other
cases, status can be a mitigating factor too.)
Sha’ari bin A Samat v Public Prosecutor141
Held : The court had alluded to the fact that the appellant had tainted the good name of the
teaching profession when considering the sentence.

d. Accused person’s role in the crime (degree of culpability)

▪ The court will also consider the involvement of the accused person in the crime, ie the role as co-
accused or main culprit.

e. Use of Violence
Public Prosecutor v Roslan bin Imun142
Facts : The accused, who had just been released from prison after serving a 20 year jail sentence
for an offence under s 304 of the Penal Code, was charged under s 326 of the Code for
forcefully pushing a 60cm stick up the anus of a 12 year old schoolboy. The crime was
committed with such violence that the stick went right up to the surface of the schoolboy's
chest, puncturing his bladder, rupturing his intestines and causing other severe internal
injuries.
The accused pleaded guilty as charged and upon conviction was sentenced by the Sessions
Court judge to the maximum 20 years' imprisonment as provided for under s 326 of the
Code. However, the accused was not sentenced to whipping. The accused appealed against
sentence and the prosecution appealed against the failure of the sessions court judge to
impose whipping.

Held : The High Court confirmed the sentence of 20 years imprisonment but additionally
ordering that the accused be whipped with 20 strokes of rattan.
: The sentence of whipping should be imposed in such a way so as to be effective and should
be imposed only when there is evidence of a substantial degree of actual physical violence.
On the facts, the crime that the accused was guilty of was cruelty at its height and
deserved the sentence of whipping in addition to the sentence of 20 years'
imprisonment. Such a sentence would deter the accused and others from committing
the same offence in the future.

f. Method used to commit the crime

● This can happen when the method used is very serious. Under S183A CPC, the Court may call
the family of the victim to give statement as to how the offence had affected them.

Section 183A : Victim Impact Statement

Before the Court passes sentence under section 183, the Court shall call upon the victim of the
offence or a member of the victim’s family, to make a statement on the impact of the offence
committed against the victim or his family.

141
[2017] 8 MLJ 553.
142
[1999[ 3 MLJ 659.
148 | Page
 Chapter 11: APPEAL

1) Introduction

1.1) Definition
Edlesten v LCC
Held : An appeal is the transference of a case from an inferior to a higher tribunal in the hope of
reversing or modifying the decision of the former.

1.2) Appeal Is A right granted by statute

Dato’ Seri Anwar Ibrahim v PP
Held : There is no right of appeal at law from a decision of a court to any other court unless
there is a statutory provision which gives a right of appeal. The creation of a right of appeal
is an act which requires legislative authority. The right to appeal from one court to another must
be conferred by some statute; otherwise, the decision of every court of law is final.

1.3) 2 levels of appeal

Appeal can be at two levels:
- If the case starts from subordinate courts, go to HC and then COA.
- If the case starts from HC, go to COA and then FC.

2) Jurisdiction of courts
● Appellate jurisdiction of High Court covers both the Sessions Courts and Magistrate Courts.

s.26 of the CJA 1964:

The appellate criminal jurisdiction of the HC shall consist of the hearing of appeals from subordinate
courts according to any law for the time being in force within the territorial jurisdiction of the HC.
149 | Page
● In CPC, appeal is governed under Chapter 30 (roman: XXX) of CPC: s.303A - s322

2.1) Exceptions where cases cannot be appealed

There are 3 situations where the case cannot be appealed:
- s.304 CPC :
Appeal in respect to decisions where offence is punishable with fine only not exceeding RM25.

- s.305 CPC :
When the accused has pleaded guilty, no appeal for the sentence except for the extent or legality of the
sentence

- s.306CPC: Where a person has been acquitted except with the sanction in writing of PP.

2.2) Appeal under the Child Act

Who may appeal for young offender tried under Child Act?

S.95(1) Child Act:

For young offender, the PP, child, parents or guardian can appeal to the High Court in accordance with
CPC.

3) Procure to appeal: s.307 CPC (and prerequisites elements to appeal)

s.307 (1) CPC: Procedure for appeal
Except in any case to which s 304 applies & subject to sections 305 & 306, any person who is dissatisfied with
any judgment, sentence or order by any Magistrate’s Court in a criminal case or matter to which he is a party
may appeal to the High Court against that judgment, sentence or order on the ground of
- any error in law, or
- any error in fact, or
- excessive severity of any sentence, or
- inadequacy of any sentence
by
- lodging with the clerk of the Magistrate’s Court a notice of appeal in triplicate addressed to the High
Court within 14 days from the time of the judgment, sentence or order being passed or made, and
- paying the prescribed appeal fee.

▪ Any person, to which he is a party to proceeding, who is dissatisfied with any judgment, sentence or
order may appeal to the High Court.
▪ Grounds of appeal:
i. Error in law,
ii. Error in fact,

150 | Page
 iii. Excessive severity of sentence,
iv. Inadequacy of sentence.
▪ There may be confusion on error in law vs error in fact. If the error is in regards to finding of facts on
evidence, it is an error in facts.
▪ Under S307, there are 3 prerequisites elements as underlined above. These will be explained below.

3.1) “Any person” & “to which he is a party”

Generally, this would refer either the Public Prosecutor or the accused.

PP v Rudguard [1939] MLJ 56

Facts : (not important)143
Held : Public Prosecutor comes under the description of “any person: in section 305 of the code.

Public Finance Bhd v PP [1989] 2 MLJ 448

Facts : The accused was charged and found guilty for human-trafficking offences 144 using a stolen car
belonged to the applicant. The accused was fined but the vehicle owned by the applicant was
forfeited as well. So the applicant applied for enlargement of time for filing a petition of appeal so
as to set aside the forfeiture order made against the said vehicle. The issue before the court was
whether the applicant, who was not an accused in the criminal proceedings in the magistrate's
court, could appeal.
Held : It is clear that the applicant was not an accused in the criminal proceedings nor was it a party to
the criminal case or matter. As such, under the terms of Criminal Procedure Code s.307(1), the
applicant cannot appeal against the forfeiture order.

● Can the PP or the child/juvenile appeal against any order under the Child Act 2001?

Previous position:
PP v Kirubakaran
Facts : In this case the Public Prosecutor had appealed against an order of acquittal and
discharge made by the President, Sessions Court, Butterworth, sitting as a Juvenile Court.
The question arose as to whether the Public Prosecutor was competent to prefer an appeal
in a Juvenile Court decision.
Held : S.14 of the Juvenile Courts Act deprived the PP of his competence to appeal against the
decision of the Juvenile Court and s.306 and s.307 are not applicable because of the
principle ‘generalia specialibus non derogant’. This means that the then s.14 of the JCA
overrides s.306 and s.307

cf

Jong Sin Fui (Guardian of the child Jong Nyuk Fong) v PP

143
Fact: The respondent was convicted on a charge of causing death by a rash act not amounting to culpable homicide,
on his own plea of guilty, and fined $500 and disqualified from holding a license for three years. The Public Prosecutor
appealed on the ground that the sentence was inadequate. On behalf of the respondent it was contended that in view of
Section 305 (now section 307) of the Criminal Procedure Code an appeal could not lie as Section 305 only gives the
accused person the right of appeal as to sentence.
144
two offences under s.33 of the Commercial Vehicle Licensing Board Act 1987 and s.90 of the Road Transport Act 1987
151 | Page
 Facts : Juvenile Court made an order placing the child in a children’s home until he reached the
age of 18. The child had earlier alleged that his injuries had been caused by his father, the
appellant. The Appellant appealed against the order. The deputy public prosecutor raised
a preliminary objection, namely, that the appellant had no right of appeal against the
order made by the Juvenile Court as the order was not by a magistrate’s court in a
criminal case or matter in compliance with the provisions of s.307(1) of the CPC.
Counsel for the appellant countered by contending that the appeal was made in reliance
upon the provisions of s.14 of the Juvenile Courts Act 1947.
Held : It was clear from the provisions of s 14 of the Act that the procedure for any appeal
against an order of the juvenile court would have to comply with the provisions of the
CPC, including s 307(1). The crucial question for determination in this case was whether
the proceedings in the juvenile court were criminal in nature and form and that the order
made by it was made in a criminal case or matter.
: In the present case, the facts showed that although the appellant had been suspected of
causing the injuries on the child, he had not been charged nor was there any indication or
likelihood that he would be charged. In fact, he had not even been apprehended by the
relevant authority. In the circumstances, the order could not be said to have been made by
the juvenile court in a criminal case or matter falling within the provisions of s 307(1) of
the CPC. Therefore, the appellant had no right of appeal under s.307(1).

Current position:
Section 95(1) of the Child Act 2001:
The PP or any child or his parent or guardian, if aggrieved by any finding or order of a Court for
Children, may appeal to the High Court against such finding or order in accordance with the
CPC.

3.2) “Judgment, sentence or order”

● You can appeal against the “decision” of the Court. However, for a decision to be within the meaning of
“judgment, sentence or order” , it must dispose of the rights of the parties finally.

Section 3 of the CJA:

“decision” means judgment, sentence or order, but does not include any ruling made in the course of
a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties.

● Thus, the question to ask is whether the order finally disposes of the rights of parties.
● Simply speaking, procedural ruling is not a decision which “dispose of the parties’ right finally”,
hence not appealable. Example of procedural ruling are:
- Court order’s that certain statements are admissible.
- Grant or refuse of bail.

Ang Gin Lee v PP

Facts : (not important)145

145
The appellant was convicted and the magistrate made an order that he be sent to undergo treatment and rehabilitation
at drug rehabilitation center for 2 years. The appellant filed a notice of appeal. The issue is whether the applicant has the
right to appeal in such matter.
152 | Page
 Held : The term ‘judgment, sentence or order’ in Sec 307(1) must be a final order in the sense
that it is final in effect as in the case of a judgment or sentence. The test for determining the
finality of the order is to see whether the order finally disposes of the rights of the parties.
It should be distinguished from procedural ruling e.g admissibility of certain statement.

PP v Hoo Chang chwen [1962] MLJ 284

Held : In a case where there is a contest as to a certain procedural ruling made by the magistrate, the
prosecutor or the defence cannot appeal in the middle of the trial against that procedural ruling
because such a ruling is not an appealable order within the provisions of the CPC.

PP v RK Menon [1978] 2 MLJ 152

Facts : The accused was tried under s.109 and 193 of Penal Code. At the end of the prosecution case,
counsel for the accused submitted that the prosecution had only tendered a sanction to
prosecute but had not complied with requirement of s.129(1)(b). The session court
overruled this objection and the counsel for the accused appealed against the ruling. The
prosecuting officer raised no objection and the President suspended the further hearing of the
case pending the appeal. An application was thereupon made for an order by way of revision
directing the president to continue with the hearing of the case.
Held : There is no right of appeal against a procedural ruling made by a Subordinate Court. A
procedural ruling is not a judgment, sentence or order within the meaning of section 307(1) of
the Criminal Procedure Code.

Dato Seri Anwar Ibrahim v PP [1999] 1 MLJ 321

Facts : An appeal against the decision that bail is not granted
Held : The definition of ‘decision’ under s.3 of CJA does not include a judgment or order which does
not deal with the final rights of parties on matters in dispute A judgment or order which does not
deal with final rights of parties and gives no final decision on matters in dispute is not a decision,
is not appealable. A decision on bail will not finally determine the rights of appellant in the
outcome of his trial. Thus, the order refusing bail is not appealable to the COA.

3.3) “A criminal case or matter”

Amand v Home Secretary
Held : A case is a “criminal case or matter” if the cause or matter is one of which, if carried to its conclusion,
might result in the conviction of the person charged and in a sentence of some punishment such as
imprisonment or fine.

● This case laid down 2 elements to determine of a suit is criminal case:

Re Clifford and O’Sullivan
Held : For a case to be a criminal case:
i. it must involve the consideration of some charge of crime, ie an offence against the
public law; and
ii. the charge must be preferred or about to be preferred before some court or judicial
tribunal having or claiming jurisdiction to impose punishment for the offence.

153 | Page
 Ang Gin Lee v PP
Held : The order by the magistrate for the accused to undergo treatment and rehabilitation for a
period of 2 years was not a criminal case or matter hence it was not appealable.

4) Procedure of Appeal to the High Court from Subordinate Court

● For this part, the word “magistrate” or “magistrate’s court” shall include a “sessions Court judge” or
“sessions Court” respectively.

s.303A: Appeals from Sessions Courts

Any reference to a Magistrate and a Magistrate’s Court in Chapter 30 of the CPC (which provide for
appeal) shall be deemed to include a Sessions Court Judge, or a Sessions Court, and the expressions
“Magistrate” and “Magistrate’s Court” shall .be construed accordingly

4.1) Filing of notice of appeal & request of notes of evidence

s.307(1) : If the appellant wishes to appeal,
- he must lodge a notice of appeal to the clerk of subordinate courts within 14 days from the
time the sentence or order had been made.
- Such notice must be in three copies which are addressed to HC, and
- pay the prescribed fees for appeal.

▪ For the purpose of calculating the period of service, the Interpretation Act applies (same as Insolvency
Law for Bankruptcy Petition)

s.54 of the Interpretation Act:

● The day in which an event happens or the act or thing is done is excluded. (the date on which the
appeal notice was serve is excluded for the calculation of “14 days”)
● If the last day of the period is a weekly holiday or a public holiday (referred to in this subsection as
excluded days) the period shall include the next following day which is not an excluded day.

Kentucky Fried Chicken v Lembaga Bandaran Petaling Jaya

Facts : Applicant was convicted and sentenced on 11/9. He filed a Notice of Appeal on 22/9. The NOA
was rejected, on reason that the 10-day (old) period had lapsed. Applicant appeal
Held : The day where sentence was passed is excluded and period starts to run from 12/9. As the
tenth day falls on 21/9 which is a Sunday and weekly holiday, the last day to file NOA is on
Monday 22/9. So, the NOA was filed in time.

▪ In notice of appeal, he can request for notes of evidence recorded by the magistrate (PP v Tan Tho Kim)
notwithstanding the notes having been supplied to him during the course of the trial.

PP v Tan Tho Kim

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 Facts : The applicant filed notice of appeal on 16/7. The 14 day period ends on 21/7. The applicant
also requested for notes of evidence pursuant to s.307(5). The court did not comply, the applicant
wrote to ask for reason why it was not delivered before the lapse of 14 days. On 21/7, the lapse
of 14 days, the court wrote to say that the notes of evidence was supplied during trial. The
applicant then applied for extension of time.
Held : it was the right given to applicant under the law to ask for notes of evidence, he was entitled to
them however superfluous and redundant they may be, unless he has chosen to waive that right.
Since the applicant never waived that right, the time for filing his petition had not lapsed.

4.2) Get the for grounds of decision from the trial court
S.307(3) :when a notice of appeal has been lodged, the court which was appealed from shall sign a copy
of the grounds of decision and served it on the appellant.

- After the notice of appeal is lodged, the subordinate court will give grounds of decision in the case and
serve on appellant. There is however, NO TIME FRAME STATED, thus Interpretation Act is
applicable.

s.54(2) Interpretation Act:

If no time frame is stated, the act must be done with all convenient speed. Undue delay can cause
convictions to be quashed.

Voon Chin Fatt v PP

Facts : The appellant was convicted of an offence and he filed a notice of appeal. However, the
grounds of judgment was delivered after two years.
Held : it is possible that the Judge may have omitted to stale something in those grounds which might
have been favourable to appellant by writing the judgment after a long lapse of time. The
appellant has been gravely prejudiced.
: Although CPC does not prescribe a time limit, the interval between notice of appeal and
delivery of grounds of judgment should be a matter of days, not weeks, much less months.
In view of the possibility of prejudice to appellant through long delay, it is impossible for
the conviction to stand.

4.3) Serve the grounds of decision and file the petition of appeal
● When the grounds of decision is readily made, it would be served on the appellant/ his advocate either
by way of personal service or by registered post.
● Then, if the appellant still wants to pursue his appeal, he has to file the next document known as
‘petition of appeal’ (This is where we put in grounds of appea) within 14 days after the copy of decision
has been served.

s.307(4) : Within 14 days after the grounds of decision had been serve, the appellant shall lodge at
the subordinate courts (which the case was appealed from) a petition of appeal in 3 copies
to the HC.

● The day of filling (14 days) runs from the day of receiving the grounds of decision.
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PP v Jawan ak Empaling
Facts : The subordinate court posted judgment together with notes of proceeding by registered mail to
appellant on 2/12, but was only received by appellant on 10/12. The Appellant faxed petition of
appeal to court on 15/12.
Issue : whether the time for filing petition run from date of posting OR date of receipt of the document
Held : the phrase ‘has been served’ in provision means the document should come into hand of
addressee. Hence, the date of filing runs from the date of receipt. The date only began on 10/12.

PP v Jayaprakasan Thangavel
Facts : Petition of appeal was lodged on 27 March 2009 and this was alleged to be one day after the 14
days’ period allowable to file the petition after service of grounds of decision and notes of
evidence on the appellant. The Respondent raised in preliminary objection that as the petition
was lodged out of time then failure to comply was fatal [s307(5)] and by virtue of s 307(9)
appeal shall be deemed to be withdrawn.
Held : In this case, the grounds of decision and notes of evidence wrongfully sent to BPR Perak on 12
March 2009 when it should be sent to BPR Putrajaya. Thus, when BPR Perak forwarded the
documents to BPR Putrajaya on 16 March 2009, who it was already 27 March 2009 when the
BPR Putrajaya received the documents. Thus, 14 days from 27 March (date of receipt) would be
30 March, 21 March was well within the 14 days’ period allocated.

4.3.1) Extension of Time Period

● Section 307(9):
If a petition of appeal is not lodged within the time prescribed (14 days), the appeal shall be deemed
to have been withdrawn and the trial Court shall enforce its sentence or order if any stay of execution
has been granted, subject to section 310 CPC.

● If a party is running out of time in observing some requirement, the party should apply to the High
Court for an extension of time under s 310 CPC.
- The only criterion the HC would consider in deliberating such an application is that substantial
justice may be done in that matter. (E.g.: change of lawyer, couldn’t find counsel)

S.310 : If a person is debarred from appealing for reason of not observing formality or
requirement, the judge may permit appeal in order that substantial justice may be done in
the matter.

Veerasingam v PP
Held :HC has discretion under s.310 of the CPC to grant extension of time in order that
substantial justice may be done by looking at all relevant material and considering the
circumstances of the original trial n the original petition of appeal

● Sample cases:
Jumari v PP
Facts : In this case, the accused didn’t file his appeal on time. He applied for extension of time on
the grounds:

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 - the appeal records and notes of proceeding were served to his lawyer at his firm on 3/10.
Then, 4/10 and 5/10 were Saturday and Sunday where his lawyer was not working,
- The lawyer (Karpar Singh) was engaged at state legislative assembly, so he was busy.
- The lawyer was sick later on 9/10.
- Then, on the last date of filing petition, the lawyer attended Kl branch and found that he
needed time to study the appeal records and notes more closely to put up the petition of
appeal
- also, since Karpar Signh was not the lawyer for the applicant at trial stage, he was unable
to study the appeal record closely.
Held : these reasons are too flimsy and frivolous to exercise discretion under s.310
: the lawyer is busy and entitled to do so, but he chose to give priority to duty as
assemblyman in preference to being a solicitor and counsel, and wanted to relax on
weekends. Also, there was no evidence on how long he was sick and engaged with the state
legislative assembly.
: thus, there is no substantial justice would be done if extension of time is granted. It is the
lawyer’s duty to be diligent once record of appeal was served on him. So, extension of time
was rejected.

Ishak bin Hj Shaari v PP

Fact : The applicant was convicted and field a notice of appeal by his old solicitor. One day
later, the old solicitor was changed to Karpal Singh & Co but the court was not aware of
it and sent the grounds of judgment and notes of proceeding to old solicitor. The old
solicitor did not forward that to the new lawyer in time, and when they forwarded, the
time to file petition of appeal had lapsed
Held : In this case, all criminal proceedings had been strictly complied with, but there were
grey areas that by no fault of all parties, the new solicitor did not receive the grounds of
judgment.
: In this case, there is more reason that the factor of inadvertence of the old solicitor in
forwarding the grounds of judgment should be considered in order that substantial justice
may be done as the liberty of a person is no mean commodity. Thus, extension of time
was granted.

Saw Yew Choy v PP

Facts : The applicant argued that the delay in filing a petition of appeal is entirely caused by the
fault of his former counsel.
Held : The courts are generally reluctant to exercise its power to grant an extension of
time under s.310 unless there are compelling reasons to do so. When a person is
convicted, he must be punished without further delay.
: However, the law allows for appeal in civilized societies where liberty of subject is
paramount but this must be done by complying with stringent conditions.
Therefore, courts are generally reluctant to excuse the fault of a counsel for a
party’s non-compliance of procedure against interest of the other party. Further in

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 this case, one year had lapsed and he was unlikely to succeed as there was enough
material in the record of appeal to justify conviction.

4.4) Particulars in the petition

● Every petition of appeal shall
- state shortly substance of judgment appealed, AND
- shall contain definite particulars of point of law or facts in regard to which the Court appealed
form is alleged to have erred.

5) Hearing of appeal
S.316 CPC: At the hearing of the appeal the Judge may dismiss the appeal if there is no sufficient ground for
interfering or may:
(a) in an appeal from an order of acquittal,
- reverse the order, and direct that further inquiry be made, or that accused be retired, or
- find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction or in an appeal as to sentence:
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried;
or
(ii) 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;
(c) in an appeal from any other order, alter or reverse such order.
● Meaning of ‘alter’
Ng Ee v PP
Held : ‘alter’ means that the power of the appellate court to alter the finding to another offence
under a different provision in any law which may only be used if the evidence is the same for
both the prosecution and the defence

5.1) Interfering (changing) the trail judge’s decision

● Can the appellate court interfere with the findings of fact of the trial court? Yes, but only when the
finding is really wrong, in the sense that the sentence was made on a wrong legal principle or not
suitable for the case.
● Also, just because the appellate judge might have passed a different finding, it is not a good reason
to interfere a trail court’s finding. (emphasized by Dr Janah)

PP v Mohamed Nor
Held : The appellate court should be slow to interfere or disturb a sentence passed by the
court below unless it is manifestly wrong in the sense of being illegal or of being
unsuitable to the proved facts and circumstances. And the fact that another court
might pass a different sentence provides no reason for the appellate court to interfere if
the court below applied the correct principles in the assessment of the sentence.

Liow Chow v PP
Held : Before the sentence is altered, it must be manifestly wrong, either in the sense of being
illegal or of being unsuitable to the proved facts and circumstances. This shows that

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 unless the trial court has erred in principle and the sentence is inappropriate in the
circumstances, the appellate court will not disturb the findings of the lower court.
R v Ball
Held : The Court does not alter or change a sentence which is subject to appeal merely because
he might pass a different sentence. Since the trial judge had seen the prisoner and heard
the story, only when a sentence appears to err in principle that court will alter it. E.g.
where it is manifestly excessive or manifestly inadequate

● Although the appellate judge may not interfere with the judgement, he can alter the harshness of the
sentence if necessary.
- How to calculate a sentence, how many years to give? The principle is public interest, that is
why we look at the objective of a sentence.
- But in Malaysia, same set of facts, different judges will pass different judgment. No guidelines in
Malaysia. Disparity of sentencing is an issue in Malaysia.

PP v Leonard Glenn Francis

Held : The first and foremost consideration of punishment is public interest. The object of
punishing crime is not only to punish the offender but also to deter others.
: Public interest is best served if the offender is induced to turn from criminal ways to
honest living. The law does not, therefore, fix the sentences for a particular crime
but fixes a maximum sentence and leaves it to the court to decide what the
appropriate sentence in the particular circumstances of each case is.
: It is for these reasons that evidence of antecedents and character should be taken before
sentence in respect of each convicted person

5.2) Admissibility of fresh evidence at hearing - s.317

● Under s317, a appellate judge may take additional evidence if it is necessary.
● If additional evidence is taken by the Magistrate, he shall certify to HC who shall proceed to dispose
of the appeal.

S317: Order to take further evidence

(1) In dealing with any appeal, a Judge, if he thinks additional evidence to be necessary, may either
take such evidence himself or direct it to be taken by a Magistrate.
(2) When the additional evidence is taken by a Magistrate he shall certify that evidence to the High
Court who shall then, as soon as may be, proceed to dispose of the appeal.
(3) Unless the Judge otherwise directs, the accused or his advocate shall be present when the
additional evidence is taken.
(4) The taking of evidence under this section shall, for the purposes of appeal, be deemed to be an
inquiry.

Mohamed bin Jamal v PP

Held : The 4 conditions for fresh evidence to be admitted at the hearing of an appeal are:146
1) The evidence must not have been available at the trial
146
The Federal Court referred to R v Parks and held this.
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 2) The evidence must be relevant to the issue
3) The evidence must be credible
4) The evidence must be such that there is a good chance of creating reasonable doubt in the
justification of the judgment, sentence, or order pronounced at the lower court

6) Miscellaneous (all sections under CPC)

S.311: stay of execution pending appeal
Except for the punishment of whipping, no appeal shall operate as a stay of execution. But the judge below may
stay execution for any other decision/ sentence such as fine or imprisonment.

S.313: procedure at hearing

(1) During the appeal, the Appellant if present, shall be heard first. Then, the respondent shall be heard
against it. Also, the appellant is entitled to reply.
(2) If the appellant does not appear, the court may refuse to consider the appeal or make such an order in
case the appellant is out of jurisdiction.

S.314 : (provide for non-appearance of respondent)

S.315: arrest of respondent.

When the PP appeals against an acquittal, the judge may issue a warrant to arrest the accused.

s.316:Decision on appeal
● The Decision of appeal depends on what is appealed against, and grounds of appeal. The possible outcome
of each scenario is explained below:
- If there is no ground to interfere : dismiss the appeal

- If the appeal is against an acquittal :

i. reverse order and direct further inquiry be made,
ii. order for re-try,
iii. find him guilty and pass sentence on him.

- If appeal is against conviction or to sentence:

i. reverse finding and sentence and acquit or discharge the accused,
ii. order retrial,
iii. alter finding, maintain sentence,
iv. reduce or enhance sentence,
v. alter the nature of sentence.

- Any other appeal : alter or reverse such order.

s.318: Judgment
- Decision of appeal may be given on that day or other date.
- Such decision must be delivered in open court

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s.319: Certificate and consequence of judgment
(1) When an appeal is decided, a judge shall certify his judgment or order to the trial court
(2) if the appeal is not dismissed, such cert shall state ground upon which appeal is allowed or variation of
decision
(3) the trial court then shall make such order in accordance with appellate court, and if necessary, the record
shall be amended.

s.320: Death of parties to appeal (in short, if the accused is died, no appeal can be done)
- Every appeal against an acquittal shall finally abate on the death of the accused
- Every other appeal against a conviction, except for a sentence of fine, shall finally abate on the death of
the appellant

s.322: Cost (This section Deal with cost)

(1) The Judge has the power to award costs as it deems fit to be paid by complainant to accused or accused to
complainant BUT no cost shall be awarded in proceeding brought against an order for acquittal.
(2) Such costs shall be assessed by the Judge at the time when he gives his decision.
(3) No costs shall in any case be awarded either against or in favour of the Public Prosecutor.

Chapter 12: Revision

1) Introduction
Revision is a process where the HC review the decision made by a subordinate court by calling the records of
the subordinate courts. [Mohd Dalhar Bin Redzwan v DBKL]

1.1) How Revision Can Be Triggered

● In revision, it can be triggered through several ways for example: -
a. The HC judge on his own initiative, can call for record on proceedings without any application from
any party.
- The HC can exercise this power on his own motion.
- This can happen whether the matter comes to his knowledge formally or informally. i.e. the HC
judge found out about a case from various means like social media, news etc.
b. The matter can also be brought to HC judge’s attention through informal means such as a third party or
a member of the public who writes to the judge.
- It could come in any form i.e. in a complaint or non-complaint form by any party not restricted
to the parties of the case i.e. the public.
c. The parties concerned can also apply to the HC judge for the matter to be revised.
- Revision is quite a useful procedure as it is over and above the opportunity to appeal.
- If the matter is an appealable matter, the parties should appeal first because appeal is
provided for. However, there are certain matters that require revision without going through an
appeal.

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 1.2) Main objective of the power of revision
● The main objective of revision is to correct or prevent miscarriage of justice, or in short it is for the
interest of justice
● Revision is a discretionary power of the Court. When revising a case, the HC judge will call up for
the records of the proceedings, to check on whether or not, it needs to exercise its revisionary
powers.
Hari Ram Seghal v PP
Held : the object of revision is to correct any miscarriage of justice arising not only from error in
judgement and procedure, but from neglect and indolence on the part of the magistrate or judge
and resulting in undeserved hardship by any individual affected by such judgement. Any mistake
or flaw in the machinery which may have the possibility of injustice must be resolved in their
favour of the affected parties.

1.3) Appeal versus Revision

Categories Revision Appeal
Origins Revision is derived from the discretionary power Appeal is as of right, which means the parties
of the high court judge, with one single aim, have the right to appeal or not. If the matter
which is to prevent miscarriage of justice. can be appealed, this process should be utilised
first as it is as of right.

Mode Revision has no fixed mode, it can be triggered There is a fixed mode of application for appeal
by formal and informal means i.e. from news, a as discussed in the topic of appeal.
letter from the public, or the judge himself
requests for the revisionary powers to be There must be a notice of appeal 14 days
judgement, sentence or order has been passed
exercised.
and need to wait for grounds for decision, and
There is no fixed mode, in the sense that, you once you have received that, within 14 days of
must file a specific form etc. It is a powerful receiving you need to file a petition of appeal
procedure, but it is reserved in exceptional cases etc. it is a fixed mode.
as stated above.

What order Revision is almost the same as the appellate Under s 316 (a) CPC, the judge can convert an
can it jurisdiction, but it can’t convert an acquittal acquittal unto a conviction.
make? into a conviction. It can order for a re-trial.

Parties Application of revision is not limited to the Only parties to the case can make an appeal.
parties of the case, as it may include members of The parties to the appeal would be the PP and
the public. the accused.

2) Provisions For Revision

● Powers of revision (to revise a case) is exercisable by the High Court (HC).
● The law governing judicial revision for criminal cases are:
i. CPC
Powers of revision can be found in chapter 31 of the CPC, which covers sections 323 to 327.

ii. Court of Judicature Act 1964 (CJA): sections 31, 32, and 35.

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● The provision for revision will be explained below:

❖ Section 31 of CJA147 : Revision of criminal proceedings of subordinate courts

The HC is to exercise supervisory role.

● The HC judges are like the big brothers looking after the subordinate courts, which includes both the
Sessions Court and the Magistrate. These matters will be dealt with properly. The scope is fairly
wide which will be covered further below.

PP v Muhari bin Mohd Jani

Fact : The deceased was found dead in police custody. 2 Respondents (police personnel) were
charged under s330 PC for hurting the deceased to extort info. The sessions court judge found
that an offence had been made out on a plea of guilt & sentenced the respondents to 18 months'
imprisonment. Deceased's elder brother filed a notice of motion in the HC to revise & increase
the sentences.
Held : (allowing the notice of motion)
: Under s 31 of 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.
: The powers of revision of HC are exercisable at the discretion of the court and that
discretion is untrammelled and free, so as to be fairly exercised according to the exigencies of
each case.
: However, the power of revision must be used sparingly and primarily for the purposes of
preventing or correcting a miscarriage of justice. It may be used to increase a sentence only
in exceptional cases.
: When revising a case, the judge must consider all the circumstances of each particular
case. The main question to be asked when revising a judgment is whether substantial justice has
been done or will be done and whether the lower court should be interfered with in the interests
of justice.

❖ Section 35 of CJA: General supervisory and revisionary jurisdiction of High Court

when a HC judge exercises his power of revision, the act of asking for the record of proceedings from the
subordinate courts, would result in stay of all proceedings.

● The moment the HC judge calls for the record of proceedings, all matters of the proceedings will halt
pending the order coming from the HC judge the moment this is triggered, then the subordinate courts
must stay all proceedings.
● In short, section 35 of CJA deals with the effect of the HC exercising its power.

PP v Sandra Margaret Birch

Held : S35 of CJA gives the High Court general supervisory and revisionary jurisdiction over all
subordinate courts, and, if it is desirable in the interests of justice at any stage of proceeding in
any subordinate court, the High Court may call for the record thereof and may remove the same

147
31. Revision of criminal proceedings of subordinate courts
The High Court 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.
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 into the High Court or may give to the subordinate court such directions as to the further conduct
of the same as justice may require.

❖ Section 323 of CPC: Power to call for records of subordinate Courts

A HC judge may call for and examine the record of any proceedings in the subordinate courts, for the
purpose of satisfying itself as to the correctness, legality or propriety of any findings, sentence or order
recorded or passed and as to the regularity of proceedings.

● This is very wide provision to revise the procedural aspects of a case.

● Section 323(2) of CPC (exception to revisionary powers) states that Orders made under s97 and s98
(public nuisance) of CPC are not proceedings within the meaning of this section

❖ Section 324 of CPC: Power to order further inquiry

On examining the records under section 323 of CPC or otherwise, the judge may direct the magistrate and
the magistrate shall make further enquiries into any complaint which have been dismissed under section
135 of CPC or in the case of any accused person who has been discharged.
● Section 324 deals with the scope of any complaints under section 135 of CPC or into the case of any
accused person who has been discharged (both Discharge Amounting to Acquittal and (Discharge
Not Amounting to Acquittal)
● The HC judge can make an order directing the magistrate to make an enquiry, and when such an
order is made, the magistrate has no choice but to be obliged to carry out the enquiry.
● Section 324(2) states that the reference to the magistrate above, refers also to sessions court judge.

❖ Section 325 of CPC : Powers of Judge on revision

(1) This section concerns the powers of the judge on revision. What are the orders that the HC judge can
pass in exercising its revisionary powers? Section 325(1) lists down what it can do, it states in his
discretion, a HC judge may exercise any of the powers conferred under: -
o section 311 (to stay the execution),
o section 315 (arrest),
o section 316 (decisions that the court can make upon appeal),
o section 317 (order for further evidence)
o section 324 (requires further enquiry).
(2) No order under this section shall be made to the prejudice of the accused, unless he has had the
opportunity to be heard either personally or through his advocate.
● So if the judge wishes to make an order which will be prejudicial to the accused, the court must
give sufficient opportunity to the accused to be heard.
(3) the HC judge in revising a case, is not authorised to convert the finding of acquittal into one of
conviction. Other than that, the court can make any amendment as to the judgment.
● Point to ponder upon: whether allowing the HC Court judge to order for a re trial would be against
the maxim of res judicata? Dr Jannah: It is arguable, technically it should not be res judicata.

❖ Section 326 of CPC : Permission for parties to appear

No parties have the right to be heard either personally or by an advocate before a judge who is revising a
case provided that:
- the judge may do so (to hear from the party personally or from his advocate) if it thinks fit
- Nothing in this section is deemed to affect section 325(2)
▪ This means if the court is to make an order which is to prejudice the accused person, then the
accused person still has the right to be heard. Which means section 325(2) will override this
section.
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 ▪ In exercising the power of revision, the HC will just look at the records of proceedings.
▪ Thus, generally, no party can appear before the judge as the judge will only examine the notes of
proceedings unless the judge thinks it is fit to hear from the party or from his advocate.

❖ Section 327 of CPC : Orders on Revision

Once an order for revision is made, the HC judge can certifies his decision or order and then sends it back
to the trial judge what the revisionary order is together with the grounds of the variation/order.
● This means the HC judge will send back to the subordinate court the order(s) together with the
grounds for doing so.
● The subordinate court judge will then revise and reflect the orders(changes/corrections) made by the
HC judge. The reason this is done is because, the HC judge is playing the big brother role,
supervising the subordinate courts, to correct any mistakes done so that any miscarriage of justice can
be avoided.

3) Important cases to read

● This case laid down many principle regarding revision:
Mohd Dalhar bin Redzwan v DBKL [1995] 1 AMR 828
Fact : (not important)148
Held : Under the Court of Judicature Act, the HC can only revise issues which were raised in the
previous court. If such issue was not raised, such issue cannot be revised.
: Except when there is a good reason or in exceptional cases, a person cannot ask for revision if
the decision is appealable but no appeal has been lodged.
: Under s305 of CPC, a person who has been convicted on his plea of guilt is entitled to appeal
only against the extent or legality of the sentence. However, once such appeal has been lodged,
he can still content that the conviction was illegal and request the judge to act in revision. A
court hearing an appeal against a sentence is entitled to act in revision and set aside a conviction.
: The power of revision is discretionary in nature. The Court can opt not to revise a case.

● These cases illustrates how a revision is needed in certain situation

PP v Kulasingham
Fact : The Magistrate who originally tried the case had been transferred to be a DPP. He had heard
the prosecution case, called on the defence and a defence witness had given evidence. The
subsequent magistrate made an order for the case to be tried de novo. When the case came up,
the DPP suggested that the case be continued under section 261 CPC. Defence counsel objected
and subsequently applied for an order of prohibition against the magistrate. The matter came
before the High Court in revision.

148
The first applicant, who was the general manager of the second applicant, Zaibar Auto appeared before a magistrate
on the company’s behalf on a charge of contravening certain trade byelaws. He pleaded guilty to the charge. A conviction
was recorded and the first applicant was fined RM500 which he paid, but refused to pay the RM100 per day as long as
the offence continued. The second applicant elected to instruct its solicitors to write to the High Court asking for the orders
of the magistrate to be revised. Their complaint related, inter alia, to the plea of guilt by the first applicant whom, they
contended, was not a director of the company. The argument was that even if the company was guilty of an offence, only
its directors could be punished vicariously and not some inconsequential subordinate, such as the first applicant. The High
Court judge called for the case record of the magistrates’ court and, after examining it, refused to revise the orders. The
issue before the Court of Appeal

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 Held : The powers of the High Court in revision are amply provided under s325 CPC. The
object of revisionary powers of the High Court is to confer upon the High Court a kind of
"paternal or supervisory jurisdiction" in order to correct or prevent a miscarriage of
justice.
: In a revision, the main question to be considered is whether substantial justice has been
done or will be done and whether any order made by the lower court should be interfered
with in the interest of justice.
: In this case, since the large number of witnesses already heard and the large number of exhibits
already tendered, a rehearing would cause unnecessary hardship and unreasonable expenditure in
this case and therefore the court would order that the case be continued under the provisions of
section 261 of the Criminal Procedure Code.
: It is clear in this case that the original President Encik Abdul Murad was subsequently
appointed DPP in Negri Sembilan. It is not in the interest of justice that he should continue to
hear this case notwithstanding that he had already made an order to call for the defence. Justice
must not only be done but also must be seen to be done.

Re Soo Leot
Fact : In this case, the Magistrate wrongfully held that one of the witnesses was an accomplice for
assisting the accused in disposing of 3 bicycles. However, from the evidence, the witness did not
assist the accused in disposing of the bicycles which were the subject of the charges before the
Court.
Held : The powers of the High Court in revision are exercisable at the discretion of the Court and that
discretion is untrammelled and free, so as to be fairly exercised according to the exigencies of
each case;
: In this case, the Magistrate was wrong in holding that the witness was an accomplice and
therefore the order of acquittal and discharge must be set aside and a new trial ordered.

Hari Ram Seghal v PP

Fact : In this case, the applicant was convicted for 2 charges under the Penal Code. So, as punishment,
rhe Magistrate bound over the application under section 173A(ii)(b) of the Criminal Procedure
Code without recording a conviction in the sum of $200 with one surety of good behaviour fro
the first charge and fined the applicant $500, in default 3 months' imprisonment for second
offence.

The applicant filed appeals for both charges. The Applicant waited for the delivery of the
records of proceedings and the grounds of judgment but both remained undelivered. The
Magistrate who tried the case had taken possession of the entire records for the purpose of
writing his grounds of judgment. When the Magistrate left Malacca to pursue his degree
course, he took along the records of this case and several others with him to the campus and for
reasons best known to him, he had ignored or neglected to write the grounds of his decision or
return the records of proceedings to the registry in spite of numerous demands by the court as
well as higher authorities.
Held :The powers of revision by a High Court under the CPC and CJA 149 must be given a wider
interpretation. The object of these provisions is to correct any miscarriage of justice arising not

149
as contained in Part VII of CPC & under s31 CJA

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 only from error in judgment and procedure but from neglect or indolence on the part of those in
authority and resulting in undeserved hardship on any individual affected by such judgment,
neglect or indolence.150
: In this case, principles of justice and equity call for the court's intervention and the exercise of
its inherent and statutory powers in this revision. The finding and the binding over order made
under section 173A(ii)(b) CPC by the Magistrate should be set aside and in lieu thereof the court
would acquit and discharge the applicant on the first charge; Similarly the court quashed and
discharged the application on the second charge and ordered that the fine, if paid, be refunded to
him.

Tun Naing Oo v PP
Fact : The applicant was an asylum-seeker from Myanmar, fled his home state from the military junta
& was charged under s 6(1)(c) of Immigration Act 1959/1963 for entering Malaysia without a
valid pass. The Sessions court convicted and sentenced him to 100 days' imprisonment and two
strokes of whipping. The applicant, applied for a revision of the sentence, sought to set aside the
sentence of whipping. He contended that whipping would only add to his sufferings. Issue was
whether the applicant should be imposed with the punishment of whipping in addition to the 100
days' imprisonment.
Held : (setting aside the sentence of two strokes of whipping)
: In this case, the punishment of 100 days imprisonment imposed was appropriate and legal. The
applicant also accepted such punishment did not apply for a revision of the sentence.
: However, the sentence of two strokes of whipping was manifestly excessive since there was
no evidence that the applicant committed a crime of violence or brutality at the time he was
arrested. He was present in Malaysia illegally but not carrying out any violent act; he was
merely selling computer accessories to a customer.
It is not humane to give an asylum-seeker whipping as such person is already running away from
his own country to avoid pressure and persecution. Served no purpose to whip him and add to his
suffering when, after serving the sentence of imprisonment, the applicant would be deported.

● These 2 cases below are too technical to read. You can read if you are free. Or else, can skip.
PP v Shahrulnizam bin Othman
Fact : The High Court has been asked by the prosecution to exercise its revisionary power under s.
323 of CPC to examine the decision of the Magistrate’s Court. The order made by the Magistrate
was to allow the counsel for the respondents to cross-examine a deponent from whom
deposition had been taken and where an order for deportation had been made by the Director-
General of Immigration.
The DPP submitted that the Magistrate was wrong in law to have allowed the cross-examination
of a deponent by the counsel for the respondents from whom deposition was recorded. The
counsel for the Respondents said there is a lacuna in s. 40A CPC as it is silent on whether cross-
150
irrelevant judgment: The powers of the courts in England to intervene and make rules not provided in the criminal
procedure are inherent and are exercisable to correct any injustice. The power to make rules such as the Judges' Rules,
notice of additional evidence and power to expunge words from records are some examples of this inherent power. By
virtue of s5 CPC, the use of this power could be extended to this country provided it does not conflict with our statutory
provisions;

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 examination of a deponent in a deposition is disallowed. The fact that the section is silent on this
issue could be interpreted to mean that it allows for cross-examination of a deponent in a
deposition.
Held : The High Court was of the view that there is no lacuna in the section as it is quite clear that the
words “Notwithstanding anything contained in this Act and any written law to the contrary”
explicitly excludes any other written laws (the Evidence Act 1950 and the Rules of High Court
1980) in the application of s. 40A.
: If Parliament intended that any other provisions in any other written law to the contrary applies
to s. 40A of the Act, then it would have clearly stated so as it did in s. 52(4) of the Anti
Trafficking in Persons Act 2007 where Parliament had intended that in the course of the
recording of evidence of the trafficked person, he shall be examined in accordance with the
provisions of the Evidence Act 1950.
: Therefore, the High Court judge exercised his revisionary power under s323 of the CPC and
ruled that the Magistrate was wrong in adopting the approach which she had adopted in allowing
the counsel for the Respondents the right to cross-examine the deponent. The decision of the
Magistrate is set aside and further order that the proceeding be held without the right by counsel
to cross- examine the deponent.
Lee Heng Kooi v PP
Fact : The applicant was tried in the Magistrates' court for an offence under s397 Penal Code which
provides for whipping. A preliminary issue was raised and dismissed that s 85 of the Subordinate
Courts Act 1948 did not confer upon 1st class magistrates' court jurisdiction to try offences
which also provide for a sentence of whipping. The matter was referred to the High Court for
review. Applicant’s counsel contended that the opening phrase – 'subject to limitations contained
in this Act' in s85 meant that whipping must first be provided for in s85 before the limitation of
12 strokes in s87 of the Act could arise. Counsel further contended that s87 purports to illegally
extend the punishment of whipping to a magistrates' court. It was also contended by counsel that
s40(1) of the Interpretation Act 1967 ought not to be invoked to interpret important issues such
as jurisdiction, but only in respect to procedural or administrative matters.
Held : dismissing the application.
: S87 should be read in conjunction with the opening phrase in s85 which the legislature had
obviously intended to mean 'subject to the sentence competence of the first class magistrate to
pass any sentence, inter alia, of whipping of up to 12 strokes, a first class magistrate shall have
jurisdiction to try …'.
:S40(1) of the Interpretation Act 1967 applies in the interpretation of s 85 of the Act. S40(1) is
wide enough to bring within its ambit all laws including laws governing jurisdiction and its
applicability is not confined to procedural or administrative matters. By virtue of s40, s87 clearly
confers power to a 1st class magistrate to impose sentence of whipping of up to 12 strokes and
therefore, jurisdiction to try offences which allow for whipping must obviously be implied to
enable the magistrate to enforce the Act.

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