CPC Express Notes

CLP Refresher Course

CRIMINAL
PROCEDURE

Joseph Low
II

Published by Brickfields Asia College

www.bac.edu.my
©Brickfields Asia College Sdn Bhd
First edition: AUGUST 2020
S/N:
LB: YAN U/B: YAN/08/20
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© Brickfields Asia College
Contents
1. Jurisdiction of Courts ...................................................................... 1

2. Arrest, Search & Seizure .................................................................. 3
3. Police Investigation.......................................................................... 9
4. Powers of Public Prosecutor and Initiation of Proceedings...........14
5. Transfer of Cases............................................................................16
6. Impeachment Proceedings ...........................................................18
7. Summary Trials ..............................................................................19
8. High Court Trials & Unsoundness of Mind.....................................24
9. Court for Children (CFC).................................................................26
10. Bail.................................................................................................28
11. Charges .........................................................................................32
12. Sentencing.....................................................................................38
13. Appeals and Revisionary Powers of High Court............................43
14. Inquest of Death & Miscellaneous.................................................49
15. Very Important Topics....................................................................51
Contents
1
CRIMINAL PROCEDURE REFRESHER COURSE

Important Areas – Prepared by © Joseph Low
General:
See Quick Revision Notes, Tutorial Workbook for Suggested Outline Answers and
Exam Question Analysis.
1. Jurisdiction of Courts:
1. Proceedings in camera and exceptions:** [Page 1 Quick Revision Notes (QRN)]
1. s.7 CPC – Courts are open to the public – should be no obstacles: Lee Boon Tuan.
2. Exceptions:
i. Proviso to s.101(1) SCA 1948 and proviso to s.15 CJA 1964 – in interest of justice,
public safety or propriety.
ii. s.27 OSA 1972 – for security of Malaysia.
iii. s.12 Child Act 2001 – trials of children.
iv. s.10 SOSMA 2012 – sensitive information by accused.
v. s.265A CPC – protection of identity of prosecution witness.
2. Jurisdiction of –
nd
a. 2 Class Magistrate’s Court: [Page 2 QRN]
1. Trial jurisdiction – s.88 SCA 1948: 12 months imprisonment, fine.
2. Sentencing – s.89: 6 months imprisonment, RM1,000 fine.
st
b. 1 Class Magistrate:** [Page 2 QRN]
1. Trial jurisdiction – s.85 SCA 1948: 10 years imprisonment, fine, ss.392, 457 CPC.
2. Sentencing jurisdiction – s.87(1) SCA 1948: 5 years; RM10k, 12 strokes.
Exceptions:
i. Proviso to s.87(1) – where any law allows:
a. s.6(3) Betting Ordinance 1953: Fine RM20k-200k & 2 years imprisonment:
Cheong Ah Chew;
b. s.12 DDA 1952: Fine RM100k & 5 years imprisonment
c. s.118 Customs Act 1967: Fine RM25k.
ii. s.87(2) – Magistrate knows of previous convictions: Tengku Hitam, Abdul
Wahab, Govindan a/l Chinden Nair.
CRIMINAL PROCEDURE
c. Other powers of Magistrates:
i. s.9 CPC & s.83 SCA 1948 – Criminal jurisdiction of Magistrates – hear trials, inquire
into complaints, issue warrants, hold inquests, and other matters under any written law.
ii. s.117 CPC read with s.119 CPC – issue remand orders.
iii. s.30(1) CJA 1964 – Magistrate may stay proceedings and refer constitutional matters
to High Court:
a. Repco Holdings Bhd – HC held prosecution was ultra vires the Constitution as
the prosecutors for Security Commission did not have written authority to
prosecute.
b. Note: Gan Boon Aun (FC) – Only FC can hear constitutional matters.**
3. Jurisdiction of Sessions Court:

1. Trial jurisdiction – s.63 SCA 1948 – all except those punishable with death.
Refresher Course
2. Sentencing jurisdiction – any sentence except death: s.64 SCA 1948

3. Max. strokes of whipping in one trial – 24 strokes: s.288(5) CPC; Bachik Abdul Rahman.
4. Jurisdiction of High Court:

1. Trial jurisdiction – any offence: s.22 CJA 1964.
2. Sentencing jurisdiction – any sentence allowed by law: s.22 CJA 1964.
3. Revisionary powers – ss.31&35 CJA 1964; ss.323, 325 & 326 CPC
4. Appellate powers – can hear appeals from subordinate courts: s.26 CJA 1964.
5. HC can punish for contempt – s.13 CJA.
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5. Appellate jurisdiction of Court of Appeal:* [Page 5 QRN]

1. Art.121 Federal Constitution and s.50(1) CJA 1964 – CA is empowered to hear appeals
from HC in exercise of its original jurisdiction or appellate jurisdiction or revisionary powers.
2. Where matter was originally decided by a MC –
i. s.50(2) CJA – If the Accused (A) appeals – leave of the CA is required and it is
confined to questions of law only: Mahathir Muhammad overruling Pasupathy
Kanagasaby.
ii. s.50(3) CJA 1964 – If the prosecution appeals, no leave of the CA is required; the PP
must sign the notice of appeal.
3. Where the matter was originally decided by a Sessions Court –
s.50(4) CJA – no leave of CA is required; appeal may be on question of fact or law or both.
4. Other powers:
i. Inherent jurisdiction – r.105 RCA 1994: to prevent injustice and abuse of the process
of the court.
Cases before r.105: Ramanathan Chelliah & Ahmadi Yahya.
ii. Punish for contempt: Art.126 Federal Constitution and s.13 CJA 1964.
6. Appellate jurisdiction of Federal Court:* [Page 6 QRN]
1. Art. 121 & 128 Federal Constitution, ss.84, 86, 87 CJA 1964 – empower Federal Court to
hear appeals from decision of High Court [s.84 – on constitutional matters] and Court of
Appeal [ss.86, 87].
2. Federal Court cannot hear appeals if the matter originates from subordinate courts: Siow
Chung Peng; Ahmad Zubair Hj Murshid.
3. Other powers:
i. Advisory jurisdiction on matters referred by Parliament or State [Art.128] or by YDPA
[Art.130];
ii. Punish for contempt: Art. 126; s.13 CJA 1964.
iii. Inherent jurisdiction: r.137 RFC 1995 [See below]
7. Inherent powers of superior courts:* [Pages 4,5&7 QRN]

1. Inherent powers of superior courts (HC, CA, FC) are used to prevent injustice and abuse of
the process of the courts and are usually used to review their own decisions.
2. Authorities:
i. High Court: Karpal Singh
ii. Court of Appeal: r.105 RCA 1994; Ramanathan Chelliah & Ahmadi Yahya.
iii. Federal Court: r.137 RFC 1995:
3. Whether FC can review its decision under r.137 RFC 1995:
i. r.137 RFC 1995 – FC has inherent powers to prevent injustice or abuse of the process
of the court.
ii. Tan Sri Eric Chia Eng Hock – FC could not use its appellate jurisdiction under s.87
CJA 1964 because HC only exercised its revisionary jurisdiction but may invoke its
inherent power under r.137 to prevent injustice or abuse of the process of any court
when there is no other available remedy.
iii. The decision in Tan Sri Eric Chia’s case was not followed in the following cases:
a. Sia Cheng Soon & Anor v Tengku Ismail bin Tengku Ibrahim – FC held that r.137
RFC is not intended to enable FC to review decisions of any other court . Appeals
from sub courts end at the Court of Appeal.
b. Munawar Ahmad Anees - FC also did not follow Eric Chia’s case and held that
matters which originate from the Sessions Court end only at the Court of Appeal
c. Dato’ Seri Anwar Ibrahim – FC dismissed the application by A for FC to use its
inherent jurisdiction under r.137 RFC to expunge part of one paragraph of the
judgment and held that r.137 should only be used in exceptional cases to prevent
injustice otherwise it would open the floodgates.
iv. Thus, FC can review its own decision under r.137 RFC 1995 to prevent injustice or
abuse of the process of the court.
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8. Local Jurisdiction and extra territorial offences:* [Page 8 QRN]

a. Local jurisdiction:
1. s.2 CPC – defines “local jurisdiction” – limits of administrative district eg Banting
District.
2. Local jurisdiction of –
a. Magistrates Court: s.76 SCA 1948 – assigned by YDPA.
b. Sessions Court: s.59 SCA 1948 – assigned by YDPA.
c. High Court: s.3 CJA 1964: HC of Malaya and HC of Sabah & Sarawak.
3. See ss.121-127 CPC and the Illustrations:
s.121 – Ordinary place of inquiry and trial.
s.122 – Accused triable in place where act is done or where consequence ensues – eg
A stabbed victim in Klang and victim dies in KL – can try in Klang or KL
s.123 – Place of trial where act is an offence by reason of relation to other offence – eg
theft by A in JB but B received the stolen goods in KL.
s.124 – Offences of escaping from custody, misappropriation, CBT, and stealing – eg
theft by A in JB and A is arrested in KL.
s.125 – Where scene of offence is uncertain, etc. – can try by a court having
jurisdiction.
s.126 – Offence committed in a journey.
s.127 – When doubt arises High Court to decide.
4. Cases: (Goods from Singapore to Malaysia)
Yong Nam Seng – Accused presented goods and declaration in JB – can try.
Loh Ah Hoo – Accused presented goods and declaration in JB – can try.
Lee Szu Yin – Accused signed declaration in Singapore but did not present it at JB –
cannot try in JB.
b. Extra-territorial offences:
1. Meaning – offences committed outside Malaysia and can be tried in Malaysia.
2. s.127A CPC – Extra-territorial offences:
a. Offences against the State: Chapter VI Penal Code;
b. Offence related to terrorism: Chapter VIA Penal Code;
c. Any written law certified by AG to affect the security of Malaysia.
3. Rajappan – include offences under OSA 1972, Sedition Act 1948 & MACCA 2012.
4. Bigamy – s.494 Penal Code.
CRIMINAL PROCEDURE
2. Arrest, Search & Seizure:
1. Some important rules and concepts on arrest, search and seizure:
1. Mode of arrest:
a. s.15(1) CPC – touch (ie force), confine, submission by words or action.
b. Shaaban v Chong Kam Fook (PC) – word states he is arresting, force, will use force
to prevent him from going anywhere.
2. Actual arrest and constructive arrest:
a. Actual arrest – means any of the modes under s.15(1) CPC or Shaaban: Salleh
Saad; Lim Kim Ann; Tan Chye Joo.
b. Constructive arrest – any mode under s.15(1) CPC or Shaaban not satisfied: Johari
Abd Kadir; Rosyatimah.
3. Can a police officer search a person without arresting him?
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i. A person must be arrested before he is searched: s.20, ss.4,7,10,13 of 4 Schedule
CPC.
ii. Exception – s.17 CPC allows a search without arrest.
4. Can a private person search a person who has been arrested?
i. s.27 CPC – a private person after arresting a person must without unnecessary delay
hand over the person to the nearest police officer or police station.
ii. The rules do not provide that he can search the body of the person.
iii. However, s.21 CPC – provides that a private person who has arrested a person may
seize any offensive weapons from that person.
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5. Search of a woman must be done by another woman with strict regard to decency: s.19(2)
CPC.
6. Search of place entered by a person sought to be arrested: s.16 CPC.
7. Power to break in order to liberate: s.18 CPC.
8. Search of person wrongfully confined: s.58 CPC.
9. Person in charge of closed place to allow search: s.59 CPC.
2. Seizable offence and non-seizable offence:** [Page 11 QRN]

a. Seizable offence –
1. s.2(1) CPC – defines a seizable offence as an offence where a police officer may arrest
rd st
without a warrant according to the 3 column of the 1 Schedule to the CPC; e.g. theft
under s.379 Penal Code.
2. It is usually a serious offence and sentence is usually heavy.
3. It may be bailable (e.g. s.325 Penal Code), non-bailable (e.g. s.379 PC), or unbailable
(e.g. s.39B DDA 1952).
4. It may be rarely a summons case (e.g. s.325 Penal Code) or frequently a warrant case
(e.g. s.379 PC).
5. In a warrant case the accused is brought before the Court by the police normally in
handcuffs.
6. The investigating officer may straightaway go to the scene of the crime to investigate
without an Order to Investigate (OTI): s.109 CPC.
b. Non-seizable offence –
1. s.2(1) CPC defines a non-seizable offence as an offence where a police officer cannot
rd st
arrest without a warrant according to the 3 column of the 1 Schedule to the CPC; e.g.
voluntarily causing hurt (s.323 Penal Code).
2. It is usually a minor offence and sentence is usually light.
3. It is always a bailable offence (e.g. s.323 Penal Code).
4 It is always a summons case (e.g. s.323 PC). It is unlawful to issue a warrant of arrest
for a summons case under s.27 Police Act 1967 (Karpal Singh).
5. In a summons case, the accused himself appears before the Court.
6. The investigation officer may refer the complainant to a Magistrate who may take
cognizance of the offence (s.128 CPC).
3. Summons case and warrant case:** [Page 12 QRN]

a. Summons case:
th
1. s.2(1) CPC – a case relating of an offence not being a warrant case. Shown in the 4
st
column of the 1 Schedule e.g. s.323 Penal Code.
2. Accused appears in court by himself.
3. It is governed under ss.34-37 CPC.
b. Warrant case:
1. s.2(1) CPC – an offence punishable with death or imprisonment for a term exceeding 6
th st
months. Shown in the 4 column of the 1 Schedule e.g. s.379 Penal Code.
2. Accused is brought to court usually in handcuffs.
3. It is governed under ss.38-48 CPC.
4. Arrest by Police/Penghulu:
a. Seizable offence:
1. s.23(1) CPC - ……
2. Meanings of –
i. Reasonable complaint: Tan Kay Teck;
ii. Credible information: Hashim Saud v Yahya Hashim;
iii. Reasonable suspicion: Tan Eng Hoe; Shaaban;

3. s.24 CPC – What Penghulu has to do after arrest.
b. Non-seizable offence:
1. s.24 CPC – Refusal to give name and residence
2. s.25 - What Penghulu has to do after arrest
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5. Arrest by a private person:** [Page 16 QRN]

1. s.27 CPC – provides that a private person may arrest a person who in his view commits a
non-bailable and seizable offence and shall without unnecessary delay hand over that
person to the nearest Police Officer (PO) or police station. The PO shall then re-arrest that
person.
2. Cases –
i. Durga Singh; Katar Singh; Metro (Golden Mile) Pte Ltd v Paul Chua – in his view
means in his sight.
ii. Sam Hong Choy – in his view means in his sight or in his opinion. To satisfy “in his
opinion”, there must be proximity of time and place and community of design (Amrita
Lal Harza)
iii. John Lewis & Co Ltd v Tims – the private person must hand the accused to the
nearest PO or police station without unnecessary delay.
6. Remedies for unlawful arrest and detention:

1. Remedies:
a. Self defence: Ong Kee Seong; Kok Khee
b. Civil suit: Tan Kay Teck; Hassan Marsom & Ors v Mohd Hady Yaakop
c. Writ of habeas corpus: ss.365-374 CPC.
2. Court can still try accused: Saw Kim Hai; Gabriel.
7. Rights of Arrested Person and Rights of Accused:* [Pages 17, 86]

a. Rights of arrested person:
1. S.28A CPC -
i. To be informed of grounds of arrest;
ii. Legal representation [also Art.5 Fed. Constitution];
iii. To communicate with relative or friend but police officer may deny.
2. s.28 CPC – Brought before a magistrate within 24 hours.
3. Right to apply for bail: ss.387 & 388 CPC.
b. Rights of accused person who has been charged:

1. Legal representation: Art.5 Fed. Constitution; s.255 CPC.
2. To know what charge against him: Jagar Singh.
3. Right to choose to give sworn evidence, unsworn evidence or remain silent: s.173(ha)
CPC.
4. To commence civil suit for wrongful prosecution: Tan Kay Teck.
CRIMINAL PROCEDURE
8. Search of body of person:** [Page 22 QRN]
th
1. s.20A CPC – a body search must comply with the 4 Schedule CPC.
th
2. Objective of search: 4 Schedule – s. CPC – provides that:
I. A body search may be conducted on a person arrested only –
a. to obtain incriminating evidence; or
b. to seize contraband, proceeds of crime, or things used in crime; or
c. to discover evidence related to his arrest or to preserve the evidence or prevent
disposal of such evidence.
ii. “person arrested” means a person who is arrested or in lawful custody after his arrest.
iii. Types of body search –
a. Pat down search;
b. Strip search;
c. Intimate search; and
d. Intrusive search.
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3. s.3 of the 4 Schedule CPC – the officer conducting a body search shall do so in a
professional manner and have the highest regard for the dignity of the person arrested.
4. Types of body search: (4 types)
a. Pat down search:
th
i. s.4 of the 4 Schedule CPC gives the meaning and conditions.
ii. s.5 – Authorization is not required to conduct a pat down search.
iii. Procedure – is given in s.6(a)-(l).
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b. Strip search:
i. s.7 – gives the meaning and conditions.
ii. s.8 – Authorization must be from an Inspector or above and recorded.
iii. Procedure – is given in s.9(a)-(n).
c. Intimate search:
ii. s.11 – Authorization must be by an officer not below the rank of ASP and
recorded.
iii. Procedure – is given in s.12(a)-(f).
d. Intrusive search:
ii. s.14 – Authorization must be by an OCPD and recorded.
iii. Procedure – is given in s.15(a)-(c).
9. Search with a warrant: [Page 23 QRN]

1. s.54 CPC – When a search warrant may be issued.
2. s.55 – Power to restrict search.
3. s.56 – Magistrate may issue warrant to search for evidence.
4. s.57 – Form of search warrant.
Lam Chiak – no date stated but used 7 days later – held search was lawful.
5. s.58 – Search for person wrongfully confined.
6. s.59 – Person in charge of close place to allow search – reasonable force to enter.
10. Search without a warrant:** [Page 24 QRN]

1. Search without a search warrant may be done under –
a. s.62 CPC;
b. s.62A & B CPC (Updates);
c. s.63 CPC;
d. s.116 CPC;
e. s.116A, B & C CPC; or
f. s.112 Child Act 2001.
2. Search under s.62 CPC:

i. s.62 CPC (read with s.435) provides that –
(1) A police officer not below the rank of an inspector may search a place if –
a. he receives information of a property alleged to have been stolen;
b. he reasonably suspects the stolen property is concealed in any place; and
c. he has grounds to believe that delay in obtaining a search warrant will result
in the property being removed.
(2) A list of the property alleged to be stolen shall be in writing with a declaration that
such property has been stolen and the informant has good grounds to believe that
the property is kept in that place.
(3) The owner of the property or his representative shall accompany the officer in the
search.
ii. Yong Moi Sin v Kerajaan Malaysia – search without a warrant under s.62 for a gold
locket in the factory was legal to prevent it from being melted away.
3. Search, seizure & forfeiture for counterfeit coins and currency (Updates 2020):
i. S.62A CPC – Forfeiture of counterfeit coin:
ii. S.62B CPC – Forfeiture of counterfeit currency:
4. Summary search under s.63 CPC:

s.63 CPC provides that any police officer with a written authority of the Chief Police Officer
(CPO) may enter, search and seize any property believed to have been stolen.
See the conditions to use this provision.
7
5. Search under s.116 CPC:

a. s.116 CPC – provides that:
(i) The investigating officer without a search warrant may search or cause a search in
any place if he reasonably believes the document/thing will not be produced under
s.51.
(ii) That officer shall conduct the search himself but if he is unable to do so, he may
delegate a subordinate officer to make the search.
b. Mohd Shafiq Dollah & Anor – s.116 can only be invoked by an Investigating Officer
and not an Arresting Officer.
6. Search and Seizure and Interception of Communications in relation to security

offences or organised crimes:
i. s.116A CPC – A police officer with the rank of an inspector or above may enter, search
and seize any documents without a warrant for evidence of a security offence or an
offence related to an organised crime.
ii. s.116B CPC – An inspector or above conducting a search has access to computerised
data.
iii. s.116C CPC – If the Public Prosecutor considers any communication is likely to contain
any information relating to the commission of an offence he may authorise a police
officer to intercept the communication which is admissible in evidence.
7. Search under s.112 Child Act 2001:

A Protector or police officer may without a warrant exercise all the powers in s.111 CA 2001
to enter, search and seize if he has reasonable cause to believe that by reason of delay in
obtaining a search warrant:
a. the investigation would be adversely affected; or
b. the object of entry is likely to be frustrated.
11. Procedure during entry, search and seizure with or without warrant:* [Page 25 QRN]
1. List of all things seized to be made and signed:
i. s.64 CPC – A list of things seized must be made and signed by the officer making the
search:
ii. Cases:
 San Soon Ha – failure to produce a search list is not fatal to the prosecution’s
case but it may cast doubt as to the bona fide of the search.
 Chin Hock Ann – there is no requirement for a search list to be prepared under
CRIMINAL PROCEDURE
DDA 1952 but it may cast doubt on whether the search is bona fide.
 Gooi Loo Seng – the inspector gave oral evidence that the drugs were recovered
from a cupboard by the accused. However, the search list stated that the drugs
were discovered by the inspector. It was fatal.
 Alcontara a/l Ambross Anthony – a list must be tendered if there is dispute and
failure to do so would attract adverse inference against the prosecution under
s.114(g) Evidence Act 1950.
iii. Whether a search list amounts to a confession:
1) It amounts to a confession if the accused acknowledges the search list:
Lim Mun Shaing – drug trafficking case – search list was not admissible as no
special caution was administered.
2) It is not a confession: [Ahmad Latch – unless a special caution is first
administered by an Inspector or above for drug offences.]
3) Note – Under the new s.113 CPC no special caution is to be administered unless
Refresher Course
given in any written law eg under DDA 1952 where a special caution is to be
administered by a police officer with the rank of Inspector or above to an arrested
person before the statement is recorded.
2. Occupant to be present at search:
s.65 CPC – The occupant must be present at a search and be given a copy of the list when
requested. The rationale is that the occupant cannot later claim that the police “planted” the
evidence there. Affirmed in Chin Hock Ann.
3. Power of police to seize property suspected to be stolen:
s.435 CPC – A police officer may seize any property suspected to be stolen or used to
commit an offence.
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4. Procedure by police on seizure of property:

s.413 CPC – Seizure of property shall immediately be reported to a magistrate who shall
make an order as he thinks fit including an order for delivery or kept in safe custody.
12. Search and seizure under Common Law:

1. Chic Fashion v Jones – warrant to search of “Ian Peters” – seized other items – lawful.
2. Ghani & Ors v Jones – seized passports of suspects – unlawful.
3. Re Kah Wai Video Sdn Bhd – followed Chick Fashion – criticised as s.435 is available.
13. Summons to produce and Delivery of Document or Thing:** [Page 26 QRN]

1. Summons to produce document or other things:
i. s.51(1) CPC provides that –
a. any court may issue a summons to an accused, a witness or the prosecution to
produce a document/thing; and
b. any investigating officer may issue a written order to produce a document or thing.
ii. Raymond Chia & Ors (SC) – In an application under s.51 in a forgery case:
a. before trial – if a particular document is specified in the charge, then the
prosecution must allow inspection of it for A to prepare his defence;
b. during trial – if the prosecution tenders a relevant document, A is entitled to a copy
of it.
iii. Dato’ Tiah Thee Kian (HC) – If the charges are complicated and there are numerous
documents involved, the accused should be given the relevant documents.
2. Delivery of certain documents:

i. s.51A CPC – provides that:
(1) Before trial, the prosecution has to supply the defendant a copy of the FIR, any
documents as evidence of the prosecution, the statement of facts favourable to the
defendant.
(2) The prosecution may not supply any facts favourable to the defendant if it is
contrary to public interest.
(3) A document shall be not be inadmissible in evidence even though there is non-
compliance with subsection (1).
(4) The Court may exclude any document delivered after the commencement of the
trial if it is shown that such delivery was made mala fide.
(5) If a document is delivered to the accused after the commencement of the trial, the
Court shall allow the accused –
a. a reasonable time to examine the document; and
b. to recall or re-summon and examine any witness in relation to the document.
ii. Can the trial proceed even though the document is not supplied to the defendant
before the trial?
s.51(5) provides that the trial will still proceed. If the document is delivered during trial
the accused will be allowed to examine it and to recall or re-summon and examine any
witness in relation to the document.
3. Cases:
 Retnarasa a/l Annarasa – s.51A is to be read with s.51.
 Dato’ Seri Anwar Ibrahim (CA) – s.51 and s.51A are separate provisions; s.51A
specifies documents to be given to A before the trial. S.51 is to summon the person to
produce the document or thing.
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3. Police Investigation:
1. First Information Report (FIR) and Issues:** [Page 32 QRN]
1. Meaning: FIR is a written document prepared by the police who first receive information
about the commission of a cognizable offence.
2. Object of the FIR is to commence police investigation of an alleged offence but it is not a
condition precedent to commence police investigation: Emperor v Khwaja Nazir Ahmad.
3. FIR is not substantive evidence but it can be used to corroborate or contradict the testimony
of a witness: Tan Cheng Kooi.
4. s.107 CPC – provides that
(1) Every information on the commission of an offence anywhere in Malaysia which is
given orally to an officer in charge of a police station must be reduced in writing and
read over to the informant.
(2) Every such information shall be entered in a book kept by that officer who shall append
the date and hour that information was given and shall be signed by the person giving
it.
(3) (a) If the information is given to a police officer who is not in a police station, it shall be
deemed to be received at a police station.
(b) A police officer receiving such information where practicable shall record the name
and address of the informant, the date and time of the receipt of such information,
and shall convey such information to an officer in charge of a police station or any
police officer whose duty is to receive such information.
(c) Such information shall be reduced to writing and entered in a book and signed by
the person who gave the information.
(4) A police officer shall be duty bound to receive any information in relation to any offence
committed anywhere in Malaysia.
This means that registration of FIR cannot be refused.
5. Issues on FIR:
i. Refusal to sign a FIR – is an offence under s.180 Penal Code.
ii. Omission to mention particulars in FIR – may be fatal to the Prosecution case:
iii. Failure to reduce the FIR into writing or to adduce it as evidence:
 Foong Chee Cheong (HC) (Gill J) – The High Court held that –
[1] If the FIR is not reduced into writing it is not a ground to throw out the case.
[2] If the FIR is not adduced as evidence at the trial, the court may make adverse
inference against the prosecution under s.114(g) EA 1950. However, the non-
production of the FIR will not vitiate the case of the prosecution if there are
CRIMINAL PROCEDURE
other evidence which establish a prima facie case against the accused.
 Tan Cheng Kooi (Chang Min Tat J) followed Foong Chee Cheong.
 Balachandran (CA) (Augustine Paul JCA) – The Court of Appeal held that the
failure of the prosecution to adduce the FIR is not fatal if the testimony of the
witness is sufficient to establish the fact and is not rebutted by any party. The court
will only draw an adverse inference if the testimony of the witness has been
rebutted and there is no corroboration evidence.
iv. Person who lodges a false FIR:
a. He may be charged: Dato’ Seri Anwar Ibrahim.
b. He cannot be sued for defamation: Lee Yoke Lam v Chin Keat Seng (FC).
2. Differences between FIR and a Complaint:* [Page 33 QRN]

a. FIR:
1. An FIR is a formal written complaint to the police and its object is to commence police
Refresher Course
investigation but it is not a condition precedent: Emperor v Khwaja Nazir Ahmad

(PC).
2. The Investigating Officer will determine whether the alleged offence in the FIR is non-
seizabe, seizable or suspected to be seizable.
3. An FIR certified by the OCPD is admissible in evidence: s.108A CPC.
4. A person who makes a false FIR may be charged [Dato’ Seri Anwar Ibrahim] but he
cannot be sued for defamation: [Lee Yoke Lam v Chin Keat Seng (FC)].
b. Complaint:
1. A complaint may be made orally or in writing to a police officer of a seizable or non-
seizable offence or even no offence.
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10
2. If it is a non-seizable offence, the investigation officer may refer the complainant to a

Magistrate: s.108(2) CPC.
3. If a magistrate takes cognizance of the complaint, he will examine that person [s.133(1)
CPC].
4. After examining the complainant, the Magistrate may dismiss the complaint if there is
no sufficient ground for proceeding: s.135 CPC.
3. Recording of statement under s.112 CPC* [Page 37 QRN]

1. s.112 CPC (read with s.114) – Examination of witnesses by the police:
(1) An investigating officer (IO) may examine orally any person – and shall reduce into
writing any statement made.
(2) Such person is bound to answer all questions – provided he may refuse to answer if it
incriminates him.
(3) Such person is bound to state the truth.
(4) The IO must give a general caution under (2) & (3).
(5) The statement made shall, whenever possible, be taken down in writing and signed by
him or affixed with his thumb print, after reading it to him in language he made it and
after giving him an opportunity to correct it.
2. s.114 CPC (read with s.112 CPC) – Any person shall not be prevented or discouraged from
making a statement during police investigation: Norliana Sulaiman.
3. Whether writing requirement and signature/thumbprint are mandatory:
 Abdul Ghani Jusoh (FC) (Wan Suleiman FJ) – Writing under s.112(1) is mandatory
but signature/thumbprint is not mandatory because of the phrase, “whenever possible”.
 cf Jayaraman FC) – The oral statement of A which was not reduced to writing was
admissible because of the phrase, “whenever possible, be taken down in writing …”
 Pathmanabhan Nalliannen & Ors (Soosilawati’s case) – s.112 statement must be
read back and the accused is allowed to correct it.
4. s.112 statement may be in the form of questions and answers or narrative form:
Subramaniam.
4. Admissibility of statement:** [Page 38-39 QRN]

1. s.113 CPC – states:
(1) No statement made by any person (witness or accused) during police investigation
shall be used in evidence except under this Chapter.
(2) The prosecution or defence may refer to any statement made by a witness (not the
accused) during investigation for impeachment proceedings.
(3) Statement made by the accused during investigation may be admitted in support of his
defence during trial.
(4) This section does not affect identification parade or s.27, s.32(1)(a), (i) & (j) EA 1950:
This means the following statements are admissible:
 Identification parade and Turnbull Guidelines – to identify A.
 s.27 EA 1950 – statement made by A in custody leading to discovery;
 s.32(1)(a) – statement of dying declaration;
 s.32(1)(i) – statement made in the course of an investigation;
 s.32(1)(j) – statement made by a public officer in discharge of his duty.
(5) A statement made by any person (witness or the accused) during investigation may be
used as evidence in the prosecution’s case where such person is subsequently
charged for making a false report or for perjury.
2. Note the following statements made by the accused under s.112 CPC:
i. The accused cannot be impeached;
ii. Confession of the accused are not admissible.

3. Exceptions:
The following statutes allow the accused to be impeached and his confession to be
admissible:
a. Under s.37A(1) DDA 1952 – Wordings are the same as the old s.113 CPC:
1. s.37A(1) DDA 1952 - provides that the statement of the Accused shall be
admissible:
i. Whether: - it amounts to a confession or not; it is oral or in writing; before or
after the charge; in the course of police investigation or not; wholly or partly in
answer to the questions; to or in the hearing of an Inspector or above or any
11
senior customs officer and whether or not interpreted to him by any other
police officer or senior officer of customs or any other person concerned or
not in the arrest;
ii. Such statement may be used in cross-examination and to impeach his credit;
iii. Provided that –
a. Such statement shall not be admissible:
i. if it is obtained by inducement, threat or promise;
ii. if is made after arrest and no caution is administered in the following
words or words to that effect:
“It is my duty to warn you that you are not obliged to say anything or
answer any question, but anything you say, whether in answer to a
question or not may be given in evidence.”
b. But such statement is admissible if there is no time to caution him but the
caution is administered as soon as possible.
2. Note that the presence of the 6 additional words, “concerned or not in the arrest”
in s.37A(1) DDA means that the interpreter may be involved in the arrest.
b. Under s.16 Kidnapping Act 1961 –

1. s.16 KA 1961 is also similar to the old s.113 CPC.
2. Note that the presence of the 6 additional words, “concerned or not in the arrest” in
s.16 KA means that the interpreter may be involved in the arrest.
c. Under s.53 Malaysian Anti-Corruption Commission Act (MACCA) 2009 -

1. s.53 MACCA 2009 is also similar to the old s.113 CPC except for the caution.
2. Statement may be made to any officer.
3. Caution is by a written notice to the person making the statement.
s.53 MACCA means that the interpreter may be involved in the arrest.
d. Under s.72 Anti-Money Laundering, Anti-Terrorism in Financing and Proceeds of

Unlawful Activities Act 2001 (AMLATA 2001) – Updates 2020
1. s.72 AMLATA 2001 is also similar to the old s.113 CPC except for the caution.
2. Statement may be made to any officer.
3. Caution is by a written notice to the person making the statement.
s.72 AMLATA means that the interpreter may be involved in the arrest.
CRIMINAL PROCEDURE
5. Relation between s.113 CPC and Evidence Act 1950:*
a. Confession made by A:
1. S.113(1) & (3) CPC – A confession made by an Accused cannot be admitted to support
the prosecution’s case.
2. Under Evidence Act 1950: (# = Updates 2020)
#
i. s.17(2) EA 1950 – defines confession as an admission made by an accused that
he committed that offence.
#
ii. s.21 EA 1950 – admissions are relevant and admissible.
#
iii. s.24 EA 1950 - a confession made by the accused is irrelevant if it was obtained
by inducement, threat or promise.
#
iv. s.25 EA 1950 - subject to any written law, a confession made to a police officer
below the rank of an inspector is not admissible.
[Note: Confession of an accused for drug, kidnapping, corruption or money
laundering offences is admissible provided a special caution or notice is first
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administered.]
v. s.26 EA 1950 – No confession by any person in custody of a police officer, shall
be proved against him.
vi. Note –
i. A confession voluntarily made by an accused for offences under DDA 1952,
#
KA 1961, MACCA 2009, AMLATA 2001 is admissible provided a special
caution/notice is first administered by a Police Inspector or above.
ii. s.115 CPC is repealed. Presently, a Magistrate or a Sessions Court Judge
has no power to take confession.
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12
b. Whether Accused can be impeached:

1. S.113(2) CPC – Only witness can be impeached i.e. accused cannot be impeached.
2. S.155 EA 1950 – provides for situations where a witness can be impeached.
3. Accused can be impeached under DDA 1952, KA 1961, MACCA 2009, AMLATA
2001.
c. S.113(4) CPC states that the following are governed under EA 1950:
i. Identification parade (and Turnbull Guidelines) – to identify the accused;
ii. s.27 EA 1950 – statement made by A (in custody) leading to discovery of any fact is
admissible.
iii. s.32(1)(a) EA 1050 – Dying declaration;
iv. s.32(1(i) EA 1950 – Statement made in the course of an investigation in an offence;
v. s.32(1)(j) EA 1950 – Statement made by a public officer in discharge of his duty.
6. Procedure on Receiving FIR:** [Page 35 QRN]

1. On receipt of the FIR, the police officer must determine whether the offence is non-seizable,
seizable or suspected to be seizable.
2. Procedure for non-seizable offence:
a. If the police officer (PO) does not wish to investigate:
i. The PO must refer the complainant to a Magistrate [s.108(1) CPC] who may take
cognisance of the complaint [s.128(1) CPC] and examine him under oath: s.133(1)
CPC.
ii. The procedures under s.133(2)-s.137 CPC will then follow.
b. If the PO wishes to investigate:
i. The PO must obtain an order to investigate (OTI) from the public prosecutor (PP):
s.108(2) CPC.
ii. Failure to obtain an OTI does not affect the court’s jurisdiction to hear the case:
Seridaran (Peh Swee Chin J).
3. Procedure for seizable offence:
s.109 CPC – A sergeant or above or OCS may investigate without an OTI.
4. Procedure where a seizable offence is suspected:
i. s.110 CPC – provides that –
(1) …..
(2) …..
(3) …..
ii. Gu Kien Lee v Ketua Polis Daerah Kota Kinabalu & Anor – 2 police reports were
made on the missing yacht which the police did not investigate as it was a private
matter. The High Court held that under s.110(1), the police had to investigate the police
reports and s.120(1) provides that a police investigation must be completed without
unnecessary delay.
5. Procedure at the Scene
i. The IO may question witnesses at the scene of the crime.
ii. s.111 CPC – The IO may require the attendance of witnesses. If he refuses the IO may
report to a magistrate who may issue a warrant to secure his attendance.
iii. s.118 CPC – Police officer may require bond for appearance of complainant and
witnesses to give evidence.
7. Procedure if Investigation cannot be completed within 24 hours:** [Page 36 QRN]

1. Remand order under CPC:
1. Art 5(4) Federal Constitution and s.28 CPC – An accused must be brought before a
magistrate within 24 hours.
2. s.117 CPC (read with s.119 CPC) – provides that:
(1) If an arrested person is detained and the investigation cannot be completed within
24 hours as required under s.28 and there are grounds to believe that the
accusation or information is well founded, the IO must transmit to a Magistrate a
copy of the entries in the diary and also produce the accused before the
Magistrate.
(1A) The Public Prosecutor may appear in any application made under this section:
13
(2) The Magistrate may grant remand orders as follows:

a. if the offence is punishable with imprisonment of less than 14 years, the
st
detention shall not be more than 4 days on the 1 application and not more
nd
than 3 days on the 2 application; or
b. if the offence is punishable with death or imprisonment of 14 years or more,
st
the detention shall not be more than 7 days on the 1 application and not
nd
more than 7 days on the 2 application.
(3) The magistrate must record his reasons for doing so.
3. s.119 CPC (to be read with s.117 CPC) – provides that:
(1) Every IO must keep a diary of daily proceedings in the investigation;
(2) At the trial the accused cannot inspect such diary but if the IO appears as a
witness and refers to the diary to refresh his memory, then the accused is entitled
to be shown only those entries which the IO had referred to.
4. Cases:
 PDRM v Audrey Keong Mei Cheng – Production of investigation diary is
mandatory.
 Re The Detention of R Sivarasa & Ors – The High Court held that it was fatal
when the magistrate granted a remand order when the police did not produce the
investigation diary.
 Re Detention of Leonard Teoh – The production of the investigation diary under
s.119 is mandatory.
 Ayar & Ors – Further remand of 19 Indonesian fishermen was not granted as the
IO did not produce the investigation diary as required under s.117.
2. Remand and further remand after the charge for murder is read:
Duis Akim – Held, s.177A CPC allowed A who was charged for murder to be remanded for
8 days under s.259 CPC until the chemist report was received.
3. Remand Order v Bail for Bailable Offence:

Maja anak Kus – a remand order under s.117 CPC supercedes bail for bailable offence
under s.387 CPC.
4. Detention under Security Offences (Special Measures) Act (SOSMA) 2012:

s.4 SOSMA 2012 – provides:
i. A person arrested may be detained for –
a. 24 hours for purpose of investigation.
CRIMINAL PROCEDURE
b. up to 28 days by a police officer with the rank of Superintendent of Police or
above.
ii. If further detention is not necessary he may be released but he may be attached with
an electronic monitoring device.
8. Summary of Entitlement of Accused to Statements Before Trial:* [Page 42 QRN]
Type of Statement Whether Entitled Authority

1. FIR Yes Anthony Gomez; Husdi; s.51A CPC
rd
2. 3 Party Report Yes Loo Fan Siang
3. Arrest Report No – not an FIR Kang Ho Soh; Lee Eng Kooi
s.113(1) CPC – but admissible during
4. Statement of Accused:
No trial to impeach the witness [s.113(2)] or
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s.112 statement
to support defence’s case [s.113(3)].
5. Cautioned and uncautioned Khoo Siew Bee; Haji Abdul Ghani bin
Yes
Statements of Accused Ishak.
6. Intelligence Report No – security reasons Huzir b Hassan.

No – Co-A is competent
7. Statement of Co-Accused Hj Abdul Ghani b Ishak.
witness against A
8. Statement of prosecution
No – tampering of witness Husdi
witness
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14
Yes – if document is
9. Other documents specified in charge; or the Raymond Chia; Dato’ Tiah Thee Kian.
charge is complicated
No – if maker is coming to
court
10. Chemist Report s.399 CPC
Yes – if PP gives Defence
10 days before trial
11. Investigation Diary No s.119(2) CPC
12. Sketch plans & photos No - privileged s.113(1) CPC
4. Powers of Public Prosecutor and Initiation of Proceedings:

1. Powers of PP to institute, conduct and discontinue:** [Page 48-52 QRN]
1. Art. 145(3) Federal Constitution and s.376 CPC – the Attorney General (Public
Prosecutor) is empowered to institute, conduct or discontinue any criminal proceedings.
2. Institute criminal proceedings:

i. To institute means to commence proceedings: Lim Shui Wang.
ii. Art 145(3) Federal Constitution and s.376 CPC provide that the PP has discretion to
institute proceedings and the court will not interfere as illustrated in the following cases:
 Long bin Samat (FC) (Suffian LP) – A was convicted under s.324 Penal Code
and appealed that he should have been charged under s.326. FC held the PP has
discretion to charge A under s.324 instead of s.326;
 Johnson Tan Han Seng (FC) (Suffian LP) – The Courts held that PP has
discretion to charge A under s.57 Intenal Security Act (ISA) 1960 (now SOSMA
2012) instead of under Arms Act (AA) 1960 or Firearms Increased Penalties Act
(FIPA) 1971;
 Sukma Darmawan (FC) – PP has the discretion to charge the accused under
s.377B PC instead of under the Syariah Court.
 Tiong King Guan & Anor (CA) – Prosecution amended the charge from murder
under s.302 PC to homicide under s.304 PC. Before the trial, the prosecution
reverted back to the original charge of murder. CA held PP has discretion.
iii. PP decides whether to prosecute after receiving investigation paper from the police.
iv. Requirement of consent or sanction of the PP for certain offences before

prosecution:
a. Consent of the PP:
i. Consent of the PP requires full consideration which needs reasoning and
weighing: Abdul Hamid.
ii. Examples – s.177A CPC (murder), s.39B DDA 1952 (drug trafficking).
iii. Consent may be oral unless stated in statute to be written: Jamali Adnan;
Goh Keat Peng.
iv. Although no consent, if presence of DPP implies consent as he is the alter
ego of PP: Abdul Hamid; Johnson Tan.
v. If no consent, charge is illegal and trial is a nullity: Chua Chor Kian.
b. Written sanction:
i. It does not require deep consideration for a prosecution: Abdul Hamid.
ii. Written sanction is required under s.129 CPC.
iii. If no written sanction –
a. Trial is a nullity: Datuk Mahinder Singh;

b. Trial is irregularity and can be cured if no injustice: Joginder Singh.
3. Conduct of proceedings:
i. “To conduct means to lead, guide, manage…”: Abdoolcader J in Datuk Harun bin Hj
Idris.
ii. s.377 CPC – PP, SDPP, DPP, APP can conduct the prosecution of the accused. The
others – police inspector, customs officer, etc – need the written authority of the PP to
conduct the prosecution.
15
Rajendran a/l Gurusamy – The High Court held the prosecution must tender the
authorisation of the PP for the police officer to conduct the prosecution.
iii. s.380 CPC – Any private person or his advocate may prosecute for an offence against
his own person or property.
iv. s.380A CPC – provides that s.377 and s.380 shall prevail over any written law.
[s.380A is codified due to the case of Repco Holdings where the officers from the
Securities Commission prosecuted without written authority of PP.]
v. s.378 CPC – provides that only the PP, SDPP or DPP can appear in any appeal.
4. Discontinuance of Proceedings (Nolle Prosequi):**

i. Art. 145(3) Federal Constitution and s.254 CPC – The AG may discontinue any
criminal proceeding at any stage before judgment.
ii. Poh Cho Ching – The court allowed the PP to withdraw the charge for corruption.
iii. Effect of discontinuance –
a. s.254(3) CPC – The Court may discharge and acquit (DAA) or discharge not
amounting to acquittal (DNAA).
b. Koh Teck Chai – The Court should DAA not DNAA.
iv. Note – If the Court orders –
a. DAA – the accused, A, cannot be charged for the same offence again. The
prosecution can appeal;
b. DNAA – A may be charged for the same offence against.
v. s.254A CPC – If the Court DNAA and he is recharged for the same offence, his trial
shall be reinstated and be continued as if no such order had been given.
vi. s.171 CPC – the remaining charges may be withdrawn on conviction of one of several
charges.
2. Other Powers of Public Prosecutor:* [Page 48 QRN]

a. Personal powers of PP:
i. Prosecution on publications: ss.68(2) CPC;
ii. Appointments of SDPP, DPP, etc: s.376(3) & (3A) CPC;
iii. Certificate of transfer to a specified High Court: ss.418A&B CPC;
iv. Notice of appeal against acquittal: s.50(3) CJA 1964.
b. Other powers of PP:

i. Authorise a police officer to intercept the communication for offences related to security
and organised crimes,: s.116C CPC.
ii. Direct the IO or OCPD to submit to PP the investigation report: s.120(2) CPC.
CRIMINAL PROCEDURE
iii. Direct a Magistrate to hold an inquiry as to the death of a person under ss.329 and
334: s.339 CPC.
iv. Certify offences under ss.12 and 39A(1) DDA 1952 to be unbailable: s.41B(1)(c) DDA
1952.
3. Private Summons:* [Page 57 QRN]

1. A non-seizable offence has been committed e.g. s.323 Penal Code.
2. Complainant has been referred directly to a Magistrate who may take cognizance of the
offence: s.128 CPC.
4. If the Magistrate takes cognisance of complaint – s.133-137 CPC will follow.
5. Examination of Complainant:
i. s.133(1) CPC – When the Magistrate takes cognisance of the offence, he shall
examine the complainant under oath.
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ii. Examination of complainant is only a preliminary enquiry to ascertain the truth and is
not to inquire into the case of the defence: Re Rasiah Munusamy.
iii. s.134(1) – If the Magistrate doubts the truth of the complaint after taking cognisance
and after examining the Complainant he may: …..
iv. s.135 – If the Magistrate opines there is insufficient ground to proceed, he may dismiss
the complaint.
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16
6. Issue of summons to the accused:

i. s.136 – If the Magistrate opines there is sufficient ground for proceeding, he shall issue:
a. a summons for the attendance of the Accused (if it is a summons case); or
b. a warrant to cause the Accused to be brought before him (if it is a warrant case).
ii. s.137 – If the Magistrate issues a summons, the personal attendance of the Accused
may be dispensed with but subject to conditions.
7. Hearing:
i. s.173(n) CPC – If the Complainant is absent at the hearing of the case – the court may
discharge the Accused.
ii. s.173(o) – If the Accused is absent at the hearing after the summons was duly served
and no sufficient grounds are given for adjournment, the court may either proceed ex
parte to hear and determine the complaint or may adjourn the hearing.
iii. s.380 – The Complainant may appear in person or by an advocate and prosecute the
Accused.
iv. s.137(2) – The Accused may plead guilty by his advocate without his presence or by
letter. The Magistrate may then record his guilty plea and convict him and then pass
sentence according to law and judicial principles.
5. Transfer of Cases:
1. Transfer of case by the Prosecution:** [Pages 53-56 QRN]
a. Vertical transfer:
1. Under CPC:
I. s.177 CPC – Application may be made by the Public Prosecutor to the Magistrate
or Sessions Court Judge to transfer the case to a higher court.
ii. s.417 CPC – Application may be made by PP to the High Court to transfer the
case from the subordinate court to a higher court giving reasons as in s.417(1):
1) The High Court is reluctant to transfer from a sub court to the High Court on
the grounds of:
a. some question of law of unusual difficulty: Lin v PP; Dato’ Kee Yong
Wee;
b. political personalities: Su Liang Yu;
c. easier for the High Court to give an order to produce any account
documents from the bank: Dato’ Kee Yong Wee.
2) s.12 of Schedule of CJA 1964 – empowers the High Court to transfer cases
to or from sub courts i.e. vertical and downward transfers.
iii. Certificate of transfer to a specified High Court by PP:
a. s.418A CPC – The Prosecution can transfer a case to a specified High Court
by tendering a certificate signed by the PP personally subject to s.418B.
b. s.418B CPC – The transfer can only be made if A has not pleaded guilty and
evidence has not been adduced.
c. Public Prosecutor can withdraw the certificate of transfer under s.418A: Dato’
Seri Mohd. Najib bin Tun Abdul Razak [2019] (FC) (Unreported).*
d. Lim Shui Wang & Ors – The Federal Court (Suffian LP) held that once a
case has been transferred under s.418A CPC the High Court must fix a date
for the trial and s.12 of Schedule of CJA 1964 cannot be used to transfer it
back to the sub court as it is subject to other written laws.
2. Under other statutes:
i. s.41A DDA 1952 – provides for 2 types of offences:

a. Drug trafficking (s.39B DDA 1952) – it must be tried in the High Court;
b. Drug possession (ss.12, 15 DDA 1952) – PP requires them to be tried in the
High Court.
ii. s.11 FIPA 1971 – is similar to s.41A DDA 1952 where the PP must “require” the
case to be transferred to the High Court.
17
3. Transmission of case to High Court for offences to be tried in High Court:

i. s.177A CPC – provides that consent of PP is required and after the charge is read
and explained to him, the case is transmitted to the High Court which shall fix a
date for his trial.
ii. Cases:
 An Kee Cheng – For a charge under s.39B DDA 1952 where the case must
be tried in the High Court, the consent of PP is required pursuant to s.41A
DDA 1952 before the case is transmitted to the High Court.
 Marwan bin Ismail – the Court of Appeal held that for a charge under
s.39B(1) DDA 1952, after the charge is read and no plea is taken, the
magistrate must transmit the case to the High Court as soon as practicable.
 Percy Wong Kiat (HC) – In a murder case where the charge is read, the
Magistrate should ensure that there is sufficient evidence before the case is
tried in the High Court.
b. Lateral transfer:
1. s.417 CPC – Application may be made by the Public Prosecutor to the High Court to
transfer the case from the subordinate court to another subordinate court of the same
level giving reasons as in s.417(1).
rd
2. Under s.104 and s.3(2) of 3 Schedule SCA 1948:
i. s.104 SCA 1948 – empowers a Sessions Court Judge or a Magistrate to transfer
the case to any other Sessions Court or Magistrate’s Court as the case may be.
rd
ii. s.99A SCA 1948 (s. 3(2) of 3 Schedule) – a sub court may, on application of the
Prosecution, transfer the case to a lateral court.
c. Application for transfer by the Prosecution: is by motion: s.418 CPC.
2. Transfer of case by the Accused:** [Pages 53-56 QRN]

(a) Vertical transfer:
i. s.417 CPC – Application may be made by the Accused to the High Court to transfer the
case from the subordinate court to a higher court giving reasons as in s.417(1):
ii. Cases – same as above.
iii. s.12 of Schedule of CJA 1964 – empowers the High Court to transfer cases to or from
sub courts i.e. vertical and downward transfers.
(b) Lateral transfer:
1. s.417 CPC – Application may be made by the Accused to the High Court to transfer the
CRIMINAL PROCEDURE
case from the subordinate court to another subordinate court of the same level giving
reasons as in s.417(1).
rd
2. Under s.104 and s.3(2) of 3 Schedule SCA 1948:
i. s.104 SCA 1948 – empowers a Sessions Court Judge or a Magistrate to transfer
the case to any other Sessions Court or Magistrate’s Court as the case may be.
rd
ii. s.99A SCA 1948 (s. 3(2) of 3 Schedule) – a subordinate court may, on
application of the Prosecution, transfer the case to a lateral court.
c. Application for transfer by the Accused: is by motion supported by affidavit: s.418 CPC.
3. Procedure where the accused is charged for offence to be tried in High Court (e.g drug
trafficking, murder):
1. Transmission of case to High Court for offences to be tried in High Court:
1. s.177A CPC – provides that –
(1) For offences to be tried in the High Court, the consent of the PP is required.
Refresher Course
Provided a person may be arrested and remanded even though consent of the PP
to institute a prosecution for the offence has not been obtained but the case shall
not be further prosecuted until the consent has been obtained.
(2) In any prosecution pursuant to subsection (1), the accused shall be produced
before the Magistrate’s Court which shall, after the charge has been explained to
him, transmit the case to the High Court.
Provided that when the accused is brought before the Magistrate’s Court before
the PP has consented to the prosecution, the charge shall be explained to him but
he shall not be called upon to plead thereto.
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18
(3) When the accused appears or is brought before the High Court, the High Court
shall fix a date for his trial.
2. Cases:
 An Kee Cheng & Anor – In this drug trafficking case under s.39B DDA 1952, the
consent of the Public Prosecutor is required pursuant to s.41A DDA 1952 before the
case is transmitted to the High Court.
 Darkasyi & Anor – For a charge under s.39B DDA 1952, A may be brought before a
Sessions Court instead of a Magistrate’s Court for the charge to be read. Also, the
Sessions Court could remand the accused pending consent of the PP.
 Marwan bin Ismail – the Court of Appeal held that for a charge under s.39B(1) DDA
1952, after the charge is read and no plea is taken, the magistrate must transmit the
case to the High Court as soon as practicable.
 Tiong King Guan & Anor (CA) – (supra) – since the charge under s.302 read with
s.109 Penal Code is to be tried in the High Court, the Magistrate or the Sessions Court
Judge must transmit the case to the High Court pursuant to s177A CPC.
 Percy Wong Kiat v PP (HC) – In a murder case, the High Court held on revision that
the Magistrate should ensure that there is sufficient evidence before the case is tried in
the High Court. However, s.177A CPC does not indicate “when” he must he must
transmit the case. In PP v Marwan Ismail, the court held that the accused is to be
brought before the High Court as soon as practicable but does not say it must be done
right after the charge is read before the Magistrate.
6. Impeachment Proceedings:
1. Important rules and concepts:
1. Purpose of impeachment – to discredit the witness so that his evidence is expunged.
2. Hostile witness – is a witness who gives oral testimony which is against the party
(prosecution or defence) that calls him.
3. Only a witness can be impeached for offences under the Penal Code: s.113(2) CPC.
4. An accused can be impeached for offences under: DDA 1952, KA 1961, MACCA 2009,
AMLATA 2001.
5. Impeachment is only allowed if there are material discrepancies: Muthusamy.
2. Modes of impeaching the credit of a witness:* [Page 59 QRN – Updates 2020]

1. s.155 EA 1950 – provides that the credit of a witness may be impeached in the following
ways:
(a) using the testimony of an independent witness who believes him to be unworthy of
credit;
(b) proof that the witness has been bribed;
(c) using a witness’s previous inconsistent statement where there are material
discrepancies – as illustrated in: Husdi v PP; Pavone v PP.
Pathmanabhan Nalliannnen v PP (FC) – Federal Court held that a FIR and a police
report can be used to impeach the credit of a witness under s.145(1) EA 1950 read
together with S.155(c) which is comprehensive enough to include FIR and police report.
2. Impeachment of a prosecution witness by the defence – existence of a ‘hunch’: Husdi v P
3. Impeachment of an accused person:
i. Ip Ying Wah v PP – when the accused elects to make a statement from the dock, he is
not on oath and not subject to cross-examination, thus his credit cannot be impeached.
ii. Note:
i. s.113 (2) CPC excludes a statement made by an accused person for the purpose
of an impeachment and s.113(3) CPC wherein his statement may be admitted in
evidence in support of his defence during the course of the trial. This applies to
offences under the Penal Code.
ii. However, for offences under any other law, it shall be subject to any special
written law which regulates the manner of inquiring or trying such offences.
Example:s.37A(1) DDA1952 – statement of accused can be used to impeach
him.
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(e) Right to cross-examine a witness whose credit is sought to be impeached: Dato’ Mokhtar
bin Hashim & Anor v PP.
3. Procedure in Impeachment:* [Page 59 QRN]

1. s.145 EA 1950 – provides that
(1) a witness may be cross-examined as to his previous inconsistent written statement
without the writing being shown to him or being proved but if it is intended to contradict
him, his attention must, before the writing can be proved, be drawn to those parts to be
used for the purpose of contradicting him.
(2) If a witness, upon cross-examination as to his previous inconsistent oral statement,
does not admit that he made such statement, proof may be given that he made it; but
before proof can be given, the circumstances which he made that statement shall be
mentioned to him and he shall be asked whether or not he made such statement.
2. The Party informs the Court of his intention to impeach the witness where there are material
discrepancies which are marked.
3. The Court reads the former statement of the witness and decides if there are material
discrepancies: Muthusamy (Taylor J) – the discrepancies may be minor, apparent, serious
or material discrepancies.
4. If the discrepancies are material, impeachment proceedings will be allowed: Pavone (Edgar
Joseph Jr J) – in this case the chemist was recalled to explain the difference between
‘opium’ and ‘opiate’.
5. Leave of court is required to impeach a party’s own witness: s.155 EA 1950.
6. The witness is then shown his statement and asked whether he made the statement:
i. If he denies or objects to the admissibility of the statement, the matter is dropped or a
voir dire (trial within trial) is held to determine whether the statement is admissible.
ii. If he admits, the statement is admissible and marked as exhibit.
7. The witness is then reminded of his oral evidence and his attention is drawn to the
discrepancies. He is given an opportunity to explain. If his explanation is:
a. satisfactory – his credit is saved;
b. unsatisfactory – his credit is doubted.
8. When impeachment order is given:
Dato’ Mokhtar bin Hashim (FC) – The Federal Court overruled Munusamy and followed
the approach by Abdoolcader J in Datuk Hj Harun Hj Idris and held that the impeachment
order is only given after the prosecution’s case after assessing his credit with the rest of the
evidence.
CRIMINAL PROCEDURE
7. Summary Trials:
7.1 Pre-Trial Processes: (Page 62 QRN)
1. Purpose:
i. To discuss all matters before the trial so as to dispose of the cases quickly;
ii. To reduce costs;
iii. To weigh the strengths and weaknesses of the prosecution and the defence;
iv. To secure a just, expeditious and economical disposal of cases.
2. Pre-trial Processes:
1. s.172A CPC – provides for Pre-trial Conference between the Prosecution and the Defence
within 30 days from the date the Accused was charged.
Refresher Course
2. s.172B – provides for Case Management between a Judge, the Prosecution and the
Defence within 60 days from the date the Accused was charged.
Naveen Raj Naidu Gunasegaran v PP (CA) – The Court of Appeal held that written
consent is required during case management to dispense with the calling of the chemist as
provided in ss.172A and 172B.
3. s.172C – provides for Plea Bargaining by the Accused in Form 28A to the Court who will
determine if the accused had made it voluntarily.
4. s.172D – Disposal of the case – in relation to plea bargaining where the judge will pass
sentence accordingly.
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5. s.172E – Finality of the judgment – no appeal against conviction except on extent and
legality of sentence.
6. s.172F– Use of statement of facts by the Accused in plea bargaining can only be used in
the application.
7. s.172G – Where the Accused pleads guilty before trial commences, the Court shall
sentence according to s.172D.
7.2 Summary Trial Procedures:

1. Letter of Representation by the advocate of the accused:* (Updates 2020)
Before the charge is read, the advocate of the accused may give a letter of representation to the
Public Prosecutor with full facts for the following –
(i) To have the charge against the accused withdrawn; e.g. in the case of joint trial of multiple
accused persons, one or more accused persons to turn as prosecution witness against the
other accused persons, provided if the charge against them is withdrawn; or he has a
complete defence to the charge preferred against him etc.
(ii) To have the charge reduced to one for a lesser punishment and the accused person to
plead guilty to an amended charge; e.g. from an offence under section 302 Penal Code to
one under section 304 Penal Code; 39B DDA 1952 to one under section 39A (2) DDA 1952
etc.
(iii) For the accused person to plead guilty but for a less deterrent sentence to be meted out by
the court;
(iv) For the accused person to plead guilty to one charge and for all remaining charges or
outstanding offences to be taken into consideration for the purpose of sentencing pursuant
to section 171A CPC.
2. When does the Accused appear or is brought before a court and what are the objections:*
(Updates 2020)
(a) After he is arrested.
(b) Under a Warrant of Arrest issued by Magistrate.
(c) Under Summons issued by Magistrate for a non-seizable offence.
(d) Objections and matters that may be considered by the court before a plea is taken are:
(i) Court has no jurisdiction – s.121 CPC.
(ii) No consent or sanction of PP.
(iii) No particulars in charge – ss.152 to 155 CPC.
(iv) Plea of autrefois acquit and autrefois convict available – 302 CPC.
(v) Application for transfer – s.177 CPC.
(vi) Postponement of case – s.259 CPC and Practice Direction 1/2019.
(vii) Other matters –
a. Whether the accused is fit to plead: Dat ak Tuni; Nageswari.
b. Reading of a charge where offence is to be tried in High Court: Marwan Ismail.
3. Procedure after the Accused pleads guilty:** [Page 65 QRN]

1. The Prosecution submits brief facts and A is asked whether he admits to the facts; the Court
must ascertain whether he understands the nature and consequence of his guilty plea
(UNCP) and there is no appeal against conviction.
2. If the Court accepts his guilty plea, it shall be recorded and he may be convicted.
3. Before passing sentence A may mitigate followed by a reply of aggravating factors by the
prosecution.
4. The Court then passes sentence according to law: s.173(b) CPC.

5. Note – It is submitted that the victim or the family of the victim may make an impact
statement due to the offence committed by A before the Court pases entence according to
law pursuant to s.173(m)(ii) CPC.
4. Withdrawal of guilty plea:** [Page 65 QRN]

1. The accused may withdraw his guilty plea before the court is functus officio: Lee Weng
Tuck.
2. “functus officio” means when sentence is passed: Jamalul Khair.
21
3. The accused cannot withdraw his guilty plea according to his whims and fancies: Sam Kim
Kai.
4. The accused cannot withdraw his guilty plea if he was caught red-handed for corruption:
New Tuck Shen.
5. Joint pleas:* [Page 66 QRN]

1. Where there is one accused and more than one charge – the charges must be read and
explained separately and the pleas must be recorded separately: Subramaniam.
2. Where there are two or more accused persons:
i. Each charge is to be read and explained separately to each accused: Fong Siew Poh.
ii. If X pleads guilty, Y not guilty:
a. Lee Weng Sang – X is sentenced only after the trial of Y.
b. Yap See Teck – there may be 2 situations:
i. If X is to become the prosecution witness – he must first be sentenced;
ii. If X is not to become the prosecution witness – the sentence is postponed
until Y’s trial.
6. When can the court DAA and DNAA:**

1. Court can discharge and acquit (DAA):
i. When the accused pleads guilty –
a. during case management: s.172D;
b. when a charge is read and explained: s.173(b); s.178(2) CPC.
ii. When the prosecution has not made out a prima facie case: s.173(f); s.180(2) CPC:
a. Prosecution can appeal – as the rights of accused has been disposed (Ang Gin
Lee);
b. If the High Court allows the Prosecution’s appeal and the Defence is called, the
Defence cannot appeal as his rights have not been disposed (Ang Gin Lee).
iii. When the prosecution declines to prosecute at any stage: s.254 CPC.
iv. When the accused is found not guilty at the end of the trial: s.173(m), s.182A CPC.
2. Court can discharge not amounting to acquittal (DNAA):
i. Before end of prosecution case, the charge is found to be groundless: s.173(g) CPC;
Practice Rule in High Court.
ii. When the prosecution declines to prosecute at any stage: s.254 CPC.
7. Alibi Witness:** [Page 76 QRN]

1. Accused may raise the defence of alibi during –
CRIMINAL PROCEDURE
a. Pre-trial conference: s.172A CPC;
b. Case management: S.172B CPC; or
c. During trial: S.402A CPC.
2. S.402A CPC – provides:
(1) When the accused is charged, the court shall inform him of his right to a defence of
alibi.
(2) If the accused intends to raise the defence of alibi he shall give a notice of alibi during
case management process.
(3) If the accused has not given notice of alibi under (2) he may adduce evidence of alibi if
he has given written notice to PP who is given reasonable time to investigate the alibi.
(4) The notice shall include particulars of the defence of alibi eg place, alibi witness, etc.
3. Cases –
 Vasan Singh – bare denial is admissible in evidence.
Refresher Course
 Krishnan (FC) – the notice may be signed by the accused or his counsel.
 Rangapula (HC) – the notice is mandatory and the particulars under s.402A must be
given.
 Hussin bin Sillit – the Supreme Court said that a statement of alibi in the cautioned
statement is not the notice as required under s.402A. A written notice is mandatory.
 Duis Akim & Ors – in a murder case, the Federal Court held that since the prosecution
witness had positively identified the accused persons, this took precedence over the
defence of alibi.
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 Azilah Adri & Anor – in a murder case of Altantuya Shaaribu, the Federal Court held
that;
i. An accused person has to prove his defence of alibi;
ii. Since the maker of the entry of the accused person on the station diary was not
called, the defence of alibi was merely a bare denial;
st
iii. The call logs from the mobile phone established that the 1 Respondent (Accused)
had made calls from the scene of the crime.
8. Expert Witness – s.399 CPC:** [Page 79 QRN]

1. s.399(1) CPC – provides that:
i. The prosecution must deliver a copy of the report of the expert witness to the accused
not less than 10 clear days before the trial commences if it intends to use it as
evidence.
ii. If the accused requires the expert witness to come to court, he must give notice to the
Public Prosecutor not less than 3 clear days before the trial commences.
2. Issues:
i. The Accused has given notice for the expert to come to Court but did not object when
the expert is not called and the report is submitted:
 Mohamed b Abdul Rahman – the report is admissible as A has waived his right.
 cf Chah Siew Kok and Ong Baw Seng – the report is not admissible.
ii. After the prosecution has given notice, the prosecution can still call the chemist to give
evidence: Mohamed Hassan (FC) following the best evidence rule.
iii. If a retrial is ordered, the DPP has to re-serve a notice as a retrial is not a continuation
of the vitiated trial: Ooi Lean Chai (SC) (Mohd Azmi SCJ).
iv. In cases of identity and weight of drug – there is no need to prove the expertise of
chemist: Munusamy (Mohd Azmi SCJ).
v. During case management the agreement not to call the expert witness was not in
writing:
Naveen Raj Naidu Gunasegaran v PP (CA) – The Court of Appeal held that written
consent is required during case management to dispense with the calling of the chemist
as provided in ss.172A and 172B.
vi. Relationship between s.399 CPC with the exception to the hearsay evidence in a
criminal proceeding:
1) If a document to be tendered into court is for the truth, it is caught by the hearsay
rule and is not admissible: DPP v Subramaniam.
2) However, that document is admissible as evidence if it comes under the
exceptions such as under res gestae, to show the mental state of the maker, or
under s.6, s.32, s.34 or s.73A EA 1950.
3) A chemist report made by the chemist is a document. If it is for the truth, it will be
caught by the hearsay rule and is inadmissible following DPP v Subramaniam.
However, s.399 CPC provides that the prosecution must give the chemist report to
the defence at least 10 days before the trial for it to be admissible if the chemist is
not coming to give evidence.
4) Thus, s.399 CPC is an exception to the hearsay rule and the chemist report is
admissible.
3. Before a witness leaves for overseas, s.396 CPC could be invoked.
S.396 CPC – provides that …. (1) – (5).
9. Adjournment:** [Page 81 QRN]

1. Statutory Provisions:
s.259 CPC – provides:
(i) If a witness is absent or for any other reasonable cause, the court may by order in
writing, adjourn the case and may, by warrant, remand A if in custody.
(ii) Every order made must be in writing, signed by the magistrate and shall state the
reasons.
2. Practice Direction 1/2011 – Adjournment is not allowed unless agreed by both parties.
23
3. PD 2/2011 – provides, inter alia:

i. The Court has discretion to allow adjournment.
ii. Hearing dates fixed by the court are prohibited from adjournment unless both parties
agree.
4. PD 1/2019:
a. Adjournment by the Court:
A Judge or Registrar should plan his vacation or attendance in a course and his
replacement if required. The new date should be informed to all the parties in advance.
b. Adjournment on application by any party:
i. Application for adjournment should be made early so that the new date of the case
can be agreed by the parties.
ii. If the hearing date has to be adjourned due to reasons which cannot be avoided
(for example, the Judge is sick, an immediate family member of the Judge is sick
or has died) the case should be heard by a replacement Judge on the fixed date or
on an adjourned date by the original Judge.
5. Cases:
i. Tan Foo Su – “reasonable cause” is a “term of art for lawyers and no definite ruling can
be laid down” (Raja Azlan Shan as HRH then was).
ii. Mohd Ekram – Medical certificate produced but court refused to postpone – a retrial
was ordered.
th
iii. Lee Fook Sam – court did not allow 4 postponement.
iv. Tan Kim San – Magistrate postponed case as charge was groundless. Held,
Magistrate should have DNAA.
v. Mokhtar Abdul Latif – Too many postponements – HC ordered early hearing.
10. Part-heard Case:* [Page 83 QRN]

Problem Question: After hearing the evidence of 3 witnesses, the Magistrate is transferred to
another court and is replaced by a new Magistrate who refuses to allow the accused to recall 2
witnesses. No reason was given for the transfer. The accused was convicted and appealed.
1. s.261 CPC – If a Magistrate had heard and recorded the whole or part of the evidence in a
trial, another succeeding Magistrate may act on the evidence so recorded by his
predecessor and partly recorded by himself or he may re-summon the witnesses and
recommence the trial. [The latter is trial de novo.]
2. Proviso to s.261 – provides that:
CRIMINAL PROCEDURE
nd
a. the accused may when the 2 Magistrate commences his proceedings, demand that
the witnesses or any of them be re-summoned and re-heard.
b. HC may set aside any conviction if it opines the accused has been materially
prejudiced and order a retrial.
3. Cases:
 Teay Wah Cheong – it is better for the new president to have a trial de novo to assess
the credibility of the witnesses.
 Mohd Jon bin Puteh – the trial judge retired before hearing the defence’s case on
drug trafficking. Held, there should be a trial de novo.
 Lai Weng Keat – the application to have a trial de novo was not allowed as it was
made about 7 years after the commission of the offence and 17 of 18 witnesses have
been called. Also, the accused was allowed to recall any material witnesses but did not
do so.
Refresher Course
 Pathmanathan Kamarasamy (HC) – After 3 prosecution witnesses have been called,

the Sessions Court Judge was replaced by a new Sessions Court Judge and no reason
was given why the previous Judge could not continue with the case. The appellant was
convicted and appealed on the ground that s.261 CPC was not complied with. The High
Court allowed the appeal and held that s.261 only applies if the previous Judge ceases
to have jurisdiction. In this case, s.261 was not complied with.
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4. On the facts – the new Magistrate refused to allow the accused to recall 2 prosecution
witnesses and the accused was subsequently convicted and appealed.
5. By virtue of the proviso to s.261, the accused may demand for the 2 prosecution witnesses
to be recalled and since the Magistrate has refused to do so the HC may set aside his
conviction and order a retrial.
6. Also, following Pathmanathan Kamarasamy since no reason was given as to why the
previous Magistrate could not continue, s.261 was not complied with and hence the
conviction of Paul would not be safe.
7. Thus the accused is advised that the new Magistrate is wrong to disallow his application to
recall the two prosecution witnesses.
8. The revisionary powers of the High Court can be invoked under ss.325 and 326 CPC and
the HC may order a re-trial under the proviso to s.261.
8. High Court Trials & Unsoundness of Mind:

1. Prosecution case:
1. Opening Address:** [Page 87 QRN]
s.179(1) CPC – It is mandatory for the prosecution to open its case. (It is discretionary in
sub court – s.174 CPC).
 Sha’ari Jusoh (FC) – The prosecution can only state what it intends to prove.
 Timhar Jimdani Ong – (s.39B case) One of the purposes of the opening address is to
show the charge is not frivolous. The opening statement is not evidence and there is no
need to state the outburst by A and the offer of bribe.
 Thien Teck Soon (CA) – The opening statement need not give evidence of the agent
provocateur.
 Pathmanabhan Nalliannen & Ors (Sosilawati’s case) – The High Court held that the
prosecution’s departure from its opening statement did not in any way affect the case
adversely.
 Chieng Chung Ting v PP – In a drug trafficking case, the appellant was convicted by
the High Court. The Court of Appeal held that although the prosecution in the opening
speech mentioned the presumption of possession under s.37(d) it did not prevent the
presenting of evidence of actual possession.
2. Examination of prosecution witnesses:
s.179(2) CPC – The prosecution shall then examine his witnesses, who may in turn be
cross-examined by the defence and, if necessary be re-examined by the prosecution.
3. Closing of prosecution’s case:
After calling all its witnesses, the prosecution will close its case and offer to the defence the
other prosecution witnesses not called. This is a practice ruling.
4. Submission of no case to answer: (A practice ruling)
Lee Kwan Woh (FC) – The Federal Court did not follow Chong Boo See and held that at
the close of the prosecution’s case, the trial court must invite a submission from A. It is open
to A to say whether he wishes to make a submission. Then the trial court will determine
whether the prosecution has made out a prima facie case.
2. Differences in trials:*
a. Differences between summary trial and High Court trial:
Procedure Summary Trial High Court Trial
1. Opening address Prosecution may open: s.174(1) Prosecution shall open: s.179(1)
2. End of defence Reply by P only if D adduces P has right to reply whether or not D
(D) case: evidence: s.174(c) adduces evidence: s.182.
25
b. Differences between High Court trial and trial in Court for Children:
Trial before High Court Trial before Court for Children
Trial is closed to public and media – s.12 CA
1. Trial is in open court – s.7 CPC.
2001.
Identity of the child must not be published –
2. Identity of the accused (not for children)
s.15 CA 2001.
can be published by media.
The words “conviction” and “sentence” cannot
3. Words “conviction” and “sentence” (not for
be used – only guilty – s.91 CA 2001.
children) can be used on accused.
No sentence of death can be passed; he shall
4. Sentence of death can be passed – s.302
be detained at the pleasure of the YDPA, Ruler,
Penal Code (not for children).
or Governor – s.97 CA 2001.
3. Unsoundness of Mind [Page 90 QRN]

1. Situations when the accused may be of unsound mind:
John a/k Nyumbei (CA) – Abdul Hamid Embong JCA said that the Judge or Magistrate
should consider the following situations:
Whether A was sane or insane

At the time of Procedure
At the time of
Situation committing
pleading
offence
(a) Sound mind Sound mind Trial will proceed: s.343 CPC
Trial cannot proceed. A may be released or
(b) Sound mind Unsound mind
put in custody: ss.344 & 345 CPC
Trial will proceed. A may raise defence of
(c) Unsound mind Sound mind
insanity: s.347 CPC.
Trial cannot proceed. A may be released or
(d) Unsound mind Unsound mind
put in custody: ss.344 & 345 CPC
2. Statutory provisions: [Page 91 QRN]

s.342 CPC provides for the procedure where a Judge or Magistrate suspects the accused
person (A) is of unsound mind and is incapable of making his defence.
s.343 CPC – gives the procedure when the Medical Director gives a medical certificate
whether A is capable of making his defence.
s.344 CPC – gives the procedure for the release or custody of A who is found to be of
CRIMINAL PROCEDURE
unsound mind and incapable of making his defence.
s.345 CPC – provides that even though A has been released under s.344, the Court may
resume the trial and require A to appear at the trial.
s.347 CPC – A may be acquitted on ground of unsoundness of mind but the finding must
state whether he committed the act or not.
s.348 CPC – gives the procedure for the Court to order safe custody of A who was
acquitted under s.347 and the finding showed he committed the act.
s.349 CPC provides for the procedure where A who is of unsound mind is reported to be
able to make his defence.
Refresher Course
s.350 CPC provides for the procedure where A who is of unsound mind and kept in a
psychiatric hospital is reported fit for discharge.
s.351 CPC provides for the procedure of A who is of unsound mind to the care of a relative.
s.352 CPC provides for the meaning of “psychiatric hospital” and “Visitors”.
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3. Cases:
 Zainal Abidin Mohd Zaid – On revision, the High Court held that it was proper to
accept the plea as he was fit to plea even though he was of unsound mind at the time
of committing the offence.
 Nageswari a/p Nagaratnam – A pleaded guilty for cheating. His Counsel mitigated that
A was of unsound mind based on medical report. The Magistrate acquitted her under
s.347 and ordered her bound over for 2 years. The Prosecution applied for revision.
The High Court held an order of acquittal on ground of unsoundness of mind under
s.347 should only be made after a full trial. This error cannot be cured under s.422.
 Misbah b Saat – The medical report showed A was fit to plead and hence he could
plead guilty.
 Chong Chai – The rational of s.348 is not to punish A but to protect and rehabilitate
him.
 Ismail bin Ibrahim (HC) – The High Court held, inter alia, the trial judge has a duty to
ensure that A is fit to plead. In this case once satisfied A is fit to stand trial, then the trial
should proceed even though he was of unsound mind at the time of the commission of
the offence. He was entitled to raise the defence of unsound mind under s.84 Penal
Code. If the defence of unsound mind succeeded the law requires an order of acquittal
by reason of unsoundness of mind.
 Junaidi bin Bambang – The Court of Appeal dismissed A’s appeal against conviction
for murdering his 3 daughters and held, inter alia, that the trial Judge had correctly
found that A was fit to plead and stand trial.
 Mya Than – A was charged for murder under s.302 PC. The medical report showed A
was fit to plead although he was of unsound mind at the time of commission of the
offence.
9. Court for Children (CFC):

1. Some Important Concepts: [Page 94-98 QRN]]
1. A child is below the age of 18 years: s.82 Penal Code.
2. s.11 CA 2001 – provides a CFC –
i. shall consist of a Magistrate and 2 Advisers (one shall be a woman) to advise the CFC
and the parents or guardian; and
ii. can try all offences except –
a. security offences and those punishable with death;
b. in a joint trial with an adult.
3. s.12 – CFC is not open to the public – must have a separate entrance and exit for children.
4. s.13 – Period of order not to extend beyond 18 years.
5. s.14 – Order of detention in approved school may extend beyond 18 years.
6. s.15 – In a joint trial with an adult, the identity of the child must not be revealed.
7. s.83 CA 2001** – provides:
(1) A child is to be arrested, detained and tried according to CA 2001.
(2) Where a child is charged and during pendency of trial he attains age of 18 years, the
CFC shall continue to hear charge and may –
(a) exercise the power under s.76 (i.e. order the detention of a child aged 18 years up
to 21 years in a Henry Gurney School);
(b) exercise the power under paragraph s.91(a), (b), (c), (d) or (g); or
(c) if the offence is punishable with imprisonment, impose any term of imprisonment
which could be awarded by a Sessions Court.
(3) When an offence is committed by a child but a charge is made out after he has attained
the age of 18 years, the charge shall be heard by a Court other than a CFC and the
other Court may exercise the power mentioned in paragraph (2)(a), (b) or (c).
(4) A child charged jointly with an adult shall not be tried in a CFC but in an appropriate
Court which shall –
a. exercise in respect of the child all the powers exercised under this Act by a CFC;
and
b. consider the probation report before exercising the powers.
27
8. Bail and remand of a child:

i. s.84 – If a child is arrested he shall be brought before a CFC within 24 hours and the
Court shall release him on bond with or without sureties unless the charge is murder or
a serious crime.
ii. Where a child is arrested and investigation cannot be completed within 24 hours,
remand of the child is governed by s.84 CA 2001 and not by s.117 CPC KWK (a child)
v PP [Updates 2020].
9. s.85 – A child must be separate from an adult in police station or court: Mohammad Shafiq
Dollah & Anor v Sarjan Mejar Abdul Manaf Jusoh & Ors
10. Trials for children:
i. Parent/guardian is required to attend [s.88] and may be required to withdraw [s.89].
ii. Trial procedure in CFC – s.90 CA 2001:
1) Charge is read and explained:
CFC or defence counsel has duty to explain the alleged offence.
2) Court must ask whether the child admits to the facts of the offence:
a. If he admits – the Court shall ascertain if he understands the nature and
consequences of his admission – then the Court records a finding of guilt.
b. If he does not admit – the Court shall hear evidence of witnesses.
3) Witnesses are called and may be cross-examined.
4) If a child is not legally represented – the Court shall:
a. allow his parents/etc to assist in his defence; or
b. assist the child.
5) If a prima facie case is made out –
a. the Court must explain to the child the evidence against him;
b. the child shall be allowed to give evidence on oath or affirmation; or make any
statement; and the evidence of any defence witnesses shall be heard.
6) If the child is not guilty, the Court shall record an order of acquittal.
7) If the finding of guilt is recorded or proved, the child and his parent/ guardian/other
responsible person may mitigate.
8) Probation report:
i. Before making any orders he Court shall consider a probation report prepared
by a probation officer containing the background, character and antecedents
of the child as well as any written report of a Social Welfare Officer.
ii. Then the Court shall explain:
a. to the child the character or conduct considered material to be dealt with;
and
b. to the parent/guardian as to the character, conduct, home surroundings
CRIMINAL PROCEDURE
or health of the child considered material.
iii. The Court may further consider any information by child/parent/ guardian.
9) Next, the Court shall record any opinions from each of the advisers.
10) Finally, the Court shall decide on the order to be imposed on the child.
11. Orders the CFC can make on proof of offence:**
1. s.91 CA 2001 provides that –
(1) The CFC may –
a. admonish and discharge the child;
b. discharge with a bond for good behaviour;
c. order the child under the care of a relative or fit person;
d. order the child to pay a fine, compensation or costs;
e. make a probation order;
f. order of committal to an approved school or Henry Gurney School;
g. deleted (old law – max. 10 strokes of whipping); and
Refresher Course
h. order imprisonment of a child 14 years and above if the offence is punishable

with imprisonment.
(2) “Conviction” & “sentence” should not be used. He is only found guilty – affirmed in
The Offender; Kharuddin; Govindarajoo (all fingerprints, photos and records of
juveniles to be returned – unregistrable)
2. Note: if a minor is tried in a High Court – he may be convicted and sentenced.
12. No whipping on a child: s.92 CA 2001 (on whipping) is deleted.
13. Parent or guardian to execute bond – s.93 CA 2001
14. Power to order parent or guardian to pay fine, etc, instead of child – s.94 CA 2001.
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28
15. Aggrieved party (prosecution or child) may appeal – s.95 CA 2001

16. Order of imprisonment:**
i. s.96 CA 2001 – provides that:
(1) A child under 14 years cannot be imprisoned for any offence or for default of
payment of fine.
(2) A child 14 years or above should not be imprisoned if he can suitably be dealt with
by probation, fine or sent to a place of detention, an approved school or Henry
Gurney School.
(3) A child 14 years or above if imprisoned must not be allowed to associate with adult
prisoners.
ii. Pursuant to s.96 CA 2001, a child may be imprisoned as held in –
 Nazarudin b Ahmad – for homicide;
 Sangkar a/l Ratnam –11 years’ imprisonment as he could not be suitably dealt
with in any other way.
 Muhammad Isa bin Aris.
17. No death sentence can be imposed** –
i.. s.97 CA 2001
(1) No death sentence shall be imposed on a child.
(2) In lieu of the death sentence, the Court shall order that child be detained at
pleasure of the YDPA or the Ruler or Governor of State.
(3) If the Court makes such order, that child shall be liable to be detained in such
prison and under such conditions as the YDPA or Ruler or Governor may direct.
(4) If that child is ordered to be detained at a prison, the Board of Visiting Justices:
a. shall review the case at least once a year; and
b. may recommend to the YDPA or Ruler or Governor on the early release or
further detention of that child,
and the YDPA or Ruler or Governor may then order him to be released or further
detained.
ii. s.97 is affirmed in Kok Wah Kuan (FC); Mohd Haikal bin Mohd Khatib Daddaly &
Ors (CA)
10. Bail:
1. Important Concepts: [Page 102]
1. Bail means release of a person (arrested or accused) by –
a. Police – police bail; or
b. Court – court bail.
2. Bond means a deed which binds a surety or a bailor.
3. Purpose of bail sum is not punitive but to secure the attendance of the accused at the trial:
Manickam.
4. Application for bail is in open court not in chambers.
5. Types of bail:
a. bailable – mandatory to grant;
b. non-bailable – discretion to grant by court or police.
c. unbailable – no discretion to grant bail.
6. Person released on bail shall give his address for service.** [Updates 2020 LPQB].
7. Although the court has not granted remand order and has released a person, the police
(OCPD) may grant bail with conditions pending investigation or trial: Yusof Othman v Kean
Hung Cheong.*
8. Bailable offence:
i. s.387 CPC – The person shall be released on bail: Mohd. Jalil b. Abdullah.
ii. No conditions are imposed: Dato’ Mat Shah [Quare – what if foreigner?]
iii. Remand order under s.117 (read with s.119) supercedes bail for bailable offence: Maja
anak Kus.
29
9. Non-bailable offence:**
i. s.388(1) CPC – provides for three types (categories):
Type (a) Those punishable for a non-bailable offence (with or without death/life
imprisonment) but there are no reasonable grounds to believe A is guilty – A
st
may be released by the OCPD/court: 1 limb s.388(1).
Type (b) Those punishable with death/life imprisonment but there are reasonable
nd
grounds to believe A is guilty – A shall not be released: 2 limb s.388(1).
Type (c) Those punishable for a non-bailable offence but A is under 16
years/woman/sick/ infirm – A may be released: proviso to s.388(1).
ii. Granting bail for Type (a)

1. Factors court will consider:
a. Wee Swee Siang (HC) – 9 factors: guilt of A, seriousness of offence, etc.
b. Dato’ Seri Anwar Ibrahim (HC) – health, detention for security offence,
social status.
c. Manickam – A is presumed innocent. Thus, he should be granted bail unless
there are reasons. The bail sum should not be punitive.
d. Dato’ Mat Shah (SC) – The Court should lean in favour of granting bail as A
is presumed innocent unless there are strong reasons.
2. Amount of bond:
i. s.389 CPC – to secure A’s attendance at the trial and shall not be excessive
or punitive.
ii. Cases:
 Manickam – should not be punitive.
 Zulkiflee b Hj Hassan (HC) – CBT charge – bail sum reduced from RM1
million to RM200,000.
3. The Court may impose conditions (eg surrender passport, report to police every
week, etc) in granting bail: Dato’ Mat Shah; Zulkiflee bin Hj Hassan – the
passport was impounded. The person may apply to the court to release the
passport giving reasons.
4. The prosecuting officer may oppose the granting of bail by providing evidence.
iii. Granting bail for Type (b):

Latchemy – In a murder case A was a mother of 10 children and was breast feeding.
Bail was not granted as the reason was not exceptional and special.
[Note – Bail could have been granted to her under the proviso to s.388(1).]
CRIMINAL PROCEDURE
iv. Granting bail for Type (c): [Updates 2020 LPQB]
a. Under the ages of 16 years:
KWK (a child) v PP.
b. A woman:
Che Su bt Daud – In a drug trafficking case, A was a mother of 6 children and
breast-feeding. Bail was granted.
[Note – s.39B DDA 1952 is an unbailable offence – bail should not have been
granted]
Samirah Muzaffar v PP (FC) – HC and CA refused to grant bail. On
appeal, FC granted bail.
c. Sick:
Leow Nyook Chin – the sickness must involve a risk to life.
Refresher Course
d. Infirm:
Balwant Singh.
v. s.388(2) CPC – Even though the police or court finds no reasonable grounds to believe
A has committed a non-bailable offence but there are sufficient grounds for further
inquiry, A shall be released on bail at the discretion of the police or court on execution
by him of a bond without sureties.
CLP
30
10. Unbailable offences

i. The Court has no discretion to grant bail ie court cannot grant bail.
ii. Types of unbailable offences:
a. Offences under s.12 FIPA 1971.
b. Offences under s.41B(1) DDA 1952
2. Revocation of bail:** [Page 106 QRN]

1. Revocation of bail for bailable offence – CPC is silent:
 Wong Kim Woon – Where a fundamental term is breached, the Court has inherent
power to revoke the bail for a bailable offence but the accused must be given an
opportunity to be heard as to why bail should not be revoked. The factors in Wee Swee
Siang are for the granting of bail and are not considered in revoking bail.
2. Revocation of bail for non-bailable offence:

s.388(5) CPC – Any Court may at any stage of any proceeding revoke the bail and the
accused may be arrested and detained.
 Phang Yong Fook – the factors in Wee Swee Siang are not considered. Evidence
must be given by the prosecution to revoke the bail and the accused must be given an
opportunity to be heard as to why bail should not be revoked. In this case, the
application by the prosecution to revoke the bail was dismissed as there was no
evidence that A was harassing or tampering with witnesses.
3. Bail pending appeal or retrial: [Page 106 QRN]

a. Bail pending appeal against conviction:**
1. When A is convicted he can appeal and apply for bail.
2. The Court has discretion to grant bail pending appeal by A against conviction in:
a. appeal from sub court to the High Court: s.311 CPC (HC);
b. appeal from High Court to the Court of Appeal: s.57 CJA 1964 (CA); and
c appeal from the Court of Appeal to the Federal Court: s.89 CJA 1964 (FC).
3 Factors to grant bail –
Re Kwan Wah Yip – 6 factors to be considered – viz:
i. gravity of the offence;
ii. length of imprisonment;
iii. points of law;
st
iv. whether A is the 1 offender;
v. repetition of offence; and
vi. attendance of A at the appeal.
b. Bail pending appeal against acquittal:

1. When the prosecution appeals against acquittal the Judge may issue a warrant
directing that the accused be arrested and brought before him, and may commit him to
prison pending the disposal of the appeal or grant him bail:
a. in appeal from sub court to the High Court: s.315 CPC;
b. in appeal from High Court to the Court of Appeal: s.56A CJA 1964; and
c in appeal from the Court of Appeal to the Federal Court: s.88 CJA 1964.
2. Ment & Ors – The Court said that grant of bail is the rule and the bail sum should be
reasonable. The prosecution must show special circumstances to refuse bail. A
submission of appeal by the prosecution is not special circumstances.
3. The Court of Appeal may issue a warrant of arrest pending appeal against acquittal
pursuant to s.56 CJA 1964: Bird Dominic Jude (CA).
c. Bail pending retrial – may be granted: Tan Boon Hock.
4. Appeal or Application against Bail Decisions:** [Page 107 QRN]

a. Appeal under s.394 CPC:
1. s.394 CPC – any person (accused or prosecution) aggrieved by any order or refusal of
any subordinate court may appeal to the High Court.
2. This procedure takes a long time and is not used by the accused.
31
b. Application to the High Court under s.389 CPC:

nd
1. 2 limb s.389 CPC – Where there is an appeal on conviction or not, a High Court
Judge may direct that bail be –
a. granted; or
b. reduced or varied.
2. Procedure – is by motion supported by affidavit.
3. Application may be made by the –
a. Prosecution – to increase the bail sum; or
b. Accused – to grant bail or to reduce the bail sum.
c. Revision of an order of bail granted by the subordinate court:*
A High Court judge may revise the order of bail granted by the subordinate court in
exercising its revisionary power under s.323 CPC and decides under s.325 CPC:
PP v Kamal Hisham Jaafar (CA)
d. Differences between s.394 and s.389 –
Topic s.394 s.389

1. Statutory Any person aggrieved may appeal Any person may apply to the High Court
provision to the High Court. Judge who may direct that bail be granted;
or the bail sum is reduced or increased.
2 Power of High Court may cancel bail; grant High Court may grant bail, reduce or
HC bail; vary the bail sum. increase the bail sum i.e. cannot cancel
bail.
3. Procedure i. File notice of appeal; wait for By motion supported by affidavit – may be
grounds of decision; then file made immediately when the sub court
petition of appeal. refuses to grant bail – faster: Sulaiman b
ii. It takes time: Sulaiman b Kadir. Kadir [1976].
4. Who can a. Prosecution must appeal under a. Prosecution may apply to increase the
appeal/ s.394 to cancel bail. bail sum.
apply b. Accused may also appeal – but b. Accused usually applies to grant bail or
it takes a long time. reduce the bail sum.
c. Dato’ Mat Shah– under s.389 – HC has
jurisdiction to review conditions of bail
set by sub courts.
5. Procedure of bail application

1. The accused or his counsel may make an oral application or by motion to the subordinate
CRIMINAL PROCEDURE
court for bail.
2. Even though the unrepresented accused remains silent, the court will ask the prosecution
whether any bail is offered and the terms of the offer.
3. The prosecution may –
a. oppose the application for bail and give his reasons; or
b. propose the amount of bail with the number of sureties.
4. If the amount proposed by the prosecution is too high the accused or his counsel will apply
to the court to reduce the bail sum and the court will decide.
5. If the court decides and –
a. if the accused thinks it is too high, he may apply to the High Court to reduce it; or
b. if the prosecution thinks it is too low, he may apply to the High Court to increase it.
6. Bailors/Sureties
1. s.390 CPC – Bond is to be executed by the accused or the bailor(s) or surety (sureties).
Refresher Course
2. s.391(1) – When bond is executed the accused shall be released.
3. Requirements to be surety:
i. adult;
ii. Malaysian citizen – if not, certain conditions to be imposed;
iii. must understand all the conditions;
iv. should forward amount fixed by court which may be fixed deposit (s.403) or land title.
4. Duty of surety – to ensure A attends trial.
5. s.392 – Warrant of arrest of A if insufficient sureties
CLP
32
6. Who can apply to reduce bail”

a. Mohan (HC) – only accused;
b. Lee Eng Hoe (HC) – accused or bailor.
7. s.393 – Application by surety to discharge bail bond: Valiamai.
7, Forfeiture of Bonds: [Page 109 QRN]

i. Procedure on for forfeiture of bail bond:
a. s.404 CPC - …..
b. Khor Ewe Suan …
ii. Cases – See page 109 QRN.
11. Charges:
1. Purpose of a charge and legal requirements to frame a valid charge:** [Page 111 QRN]
1. Purpose of a charge:
i. To inform A of the alleged offence and for him to prepare his defence.
ii. To enable the prosecution to prove his guilt.
iii. To enable the Court and the parties to know the jurisdiction of the Court, the
facts/evidence to be proved or disproved, and the punishment for the offence.
2. General principles –
i. The Charge must be certain and clear: Mohd Humayoon Shah: Lim Bah v Opium
Farmer; Lee Pak.
ii. The accused must know exactly the charge against him: Jagar Singh.
iii. The Charge must state the offence in the statute: Leong Yoon Meow.
iv. The Charge must follow the wordings in the statute: Syed Bakri.
v. The Magistrate has a duty to scrutinize whether the charge is defective and if so he
should request the prosecuting officer to amend the charge: Margarita B Cruz.
vi. Lim Yoo Hock – The conviction was quashed and a retrial was ordered because the
charge was defective.
3. Charge must state the following:
a. The offence –
i. s.152 CPC – provides that:
(1) Every charge must state the offence A is charged.
(2) The charge must state the specific name of the offence stated in the statute.
(3) If a statute does not state the specific name of the offence, so much of the
definition of the offence must be stated.
(4) The law and section of the law must be stated in the charge.
ii. Illus (c) to s.152 CPC – The punishable section of law must be stated in the
charge.
b. Particulars of time, place, person and thing –
s.153 CPC – provides that:
(1) The charge shall contain particulars as to the time and date and place of the
alleged offence and the victim/thing if any as are reasonably sufficient to notify the
accused of the charge.
(2) When the accused is charged with CBT or dishonest appropriation of money it
shall be sufficient to specify the gross sum and the dates between which the
offence is alleged to have been committed without specifying particular items or
exact dates, and the charge shall be deemed to be a charge of one offence within
the meaning of s.164:
Provided that the time between the first and the last of such dates shall not exceed
one year.
(3) When the accused is charged with an offence in relation to publication by
electronic means, the place of publication is where the publication is seen, heard
or read by any person.
c. Manner of committing offence –
i. s.154 CPC – If the particulars in ss.152 and 153 are insufficient, the charge shall
also contain particulars of the manner the offence was committed.
33
ii. Illus to s.154 CPC –

(a) Theft – no need to state the manner.
(b) Cheating – must state the manner.
(c) False evidence – part of false evidence by the accused must be stated.
(d) Obstructing a public servant in discharge of his functions – must state the
manner of obstruction.
(e) Murder – no need to state the manner.
(f) Disobedience of law by A with intent to save B from punishment – must state
the manner of disobedience.
4. Jasli Amir Salleh – The High Court held that in this case the amended charge for rape had
specifically defined the time and place of rape of his niece and was not defective.
2. Amendment of a charge:** [Page 115 QRN]

1. Statutory provisions:
i. Subordinate court: s.173(h)(ii) CPC – If a prima facie case is made out against A on
another offence for which he was not charged, the Court shall amend the charge.
ii. High Court: s.158(1) CPC – provides that any Court (includes sub court) may amend
any charge at any time before judgment is pronounced.
2. Procedure after amendment of charge:

a. Subordinate court:
i. s.173(i) CPC – The amended charge must be read to A who must be asked to
plead.
ii. s.173(j) CPC – provides that:
(i) If A pleads guilty to the amended charge, it shall be recorded and he may be
convicted and sentence passed according to law provided he understands the
nature and consequence of his guilty plea.
(ii) If A does not plead guilty to the amended charge, he shall be called to enter
his defence.
(iii) If A is called to enter his defence, he may produce his evidence and shall be
allowed to recall and cross-examine any witness present in the court’s
st
premises, provided if he elects to be called as a witness, he shall be the 1
witness.
iii. s.160 CPC – If the amended charge prejudices A, the Court may direct a new trial
or adjourn the trial.
iv. s.161 CPC – If the amended charge requires previous sanction of the Public
CRIMINAL PROCEDURE
Prosecutor, the Court will stay proceedings until the sanction is obtained.
b. High Court:
i. s.158(2) CPC – Every such amended charge must be read and explained to A.
ii. s.159 CPC – provides that:
(i) If the charge is amended the Court shall call A to plead and to state if he is
ready to be tried.
(ii) If A is not ready to proceed, the Court shall decide whether to proceed
provided it does not prejudice him.
iii. s.160 CPC – If the amended charge prejudices A, the Court may direct a new trial
or adjourn the trial.
iv. s.161 CPC – If the amended charge requires previous sanction of the Public
Prosecutor, the Court will stay proceedings until the sanction is obtained.
v. s.162 CPC – If the charge is amended, the prosecutor and A shall be allowed to
Refresher Course
recall or re-summon and examine any witness and may also call further evidence.
3. Issues –
i. Whether Court has duty to amend charge:
(a) High Court:
Under s.158 CPC, it is not the duty of the Court to amend the charge as the Court
has discretion whether to amend the charge.
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34
(b) Subordinate Court:

Under s.173(h)(ii) CPC the Court has a duty to amend the charge as held in –
 Heng You Nang;
 Oh Keng Seng – If the prosecution and A remain silent – the Court should
amend the charge.
 James Tan.
ii. The Prosecution must apply for leave of Court to amend the charge: Francis Dang
anak Nuya.
iii. The appropriate time to amend the charge – is at the end of the prosecution case
provided A is not prejudiced: Salamah.
iv. Whether mandatory for the amended charge to be read and explained to A –
a. Lim Tuan Hong v Jebsen - it is mandatory:
b. Hee Nyuk Fook (SC) – it is not mandatory depending on the facts of the case:
v. The amended charge must be recorded: Palldas Arumugam.
vi. The Charge cannot be amended during appeal: Quek Ching Kim.
3. Drafting of a charge: See pages 121-123 QRN.
4. Duplicity of charges:** [Page 117 QRN]

st
1. s.163 1 limb CPC – For every distinct offence there shall be a separate charge.
2. “every distinct offence” – means the offences are not related with each other:
 Norzilan Yaacob – A total of 344.9 gm of cannabis was found in 3 different parts of the
house. A was charged under s.39B DDA 1952 for drug trafficking of 344.9 gm of
cannabis. Held, there should be 3 separate charges.
3. Exceptions –
i. s.153(2) CPC – Charges may be joined for the following 2 categories:
a. CBT under s.406-409 Penal Code; or
b. Dishonest misappropriation of money under s.403 & s.404 PC.
ii. Sheikh Hassan – 23 offences of CBT (collection of zakat money of RM1/-) can be
joined in one charge and tried in one trial. It was sufficient to specify the gross sum
st
(RM23) and the dates of the 1 offence and the last offence.
4. Whether duplicity of charges (joinder of offences) is curable –
i. Where a charge contains 2 distinct offences –
 Yap Liow Swee – A was charged for driving ‘recklessly or negligently’. Held, the
duplicity of offences was not curable as it was uncertain which offence was
committed.
 Cf Mahfar Sairan – A committed s.304A by rash or negligent act. Held, there was
one offence not 2 offences – the duplicity was curable.
ii. Test – See Yew Poo – Russel J said that If a –
a. Joint trial can be held – it is curable under s.422 CPC provided it does not
prejudice the accused;
b. Joint trial cannot be held – it is illegal and not curable.
In this case, the charge containing 2 offences of armed robberies was not curable as it
prejudiced the accused.
iii. Mohamed Fathi – The accused used 4 forged documents on 3 separate occasions.
The prosecution prepared one charge for 4 offences of forgery. Held, since the
offences could be tried jointly, it was curable as there was no failure of justice.
5. Joint trials:** [Page 118 QRN]

nd
1. s.163 2 limb CPC – Every charge shall be tried separately unless the exceptions in
ss.164, 165, 166 and 170 apply.
2. The reason for this rule is the judge and the accused persons will not be prejudiced and
embarrassed by a multitude of charges at one trial: Subramaniam Iyer v King Emperor.
3. The application for a joint trial should be made before the commencement of the trial:
Roslan b Ishak.
4. Exceptions where joint trial can be held –
a. Only one Accused:
i. s.164 CPC – provides:
(1) Three (3) offences of the same kind committed within 12 months may be tried
together.
35
(2) Offences are of the same kind if they are punishable under the same section
of the Penal Code or any other law.
Provided offences are of the same kind –
a. under ss.379, 380, 392-7; or
b. attempt to commit such an offence.
Cases:
 Sheikh Hassan – supra;
 Azahan Mohd Aminallah – 3 offences of rape were committed over 5 years
– cannot join.
ii. s.165 CPC – Trial for more than one offence – there are 3 situations:
a. s.165(1) CPC – If the series of acts form the same transaction, the offences
may be tried together.
1) Amrita Lal Harza – there must be proximity of time, proximity of place,
continuity of action, and community of purpose or design.
2) See Illus (a) – (f) to s.165 CPC:
Eg Illus (a) – A rescues B in lawful custody of C (police) and causes
grievous hurt to C. A may be charged and tried in one trial for offences
under s.325 PC (voluntarily causing grievous hurt) and s.333 PC
(voluntarily causing grievous hurt to deter public servant from his duty)
PC.
b. s.165(2) CPC – If the acts constitute an offence within 2 or more separate

definitions of any law, the offences may be tried in one trial.
1) See Illus (g) – (j) to s.165 CPC.
2) Eg Illus (g) – A wrongfully strikes B with cane. A may be separately
charged under s.352 and s.323 and both may be tried in one trial.
c. s.165(3) CPC – Acts by themselves are different offences but when combined
constitute another separate offence – the offences may be tried at one trial.
Eg Illus (k) – A commits robbery on B and also voluntarily causes hurt to him.
A may be separately charged under ss.323, 392 and 394. All such offences
may be tried in one trial.
iii. s.166 CPC – Doubtful which offence is committed:

1) s.166 CPC – If there is an act or a series of acts and it is doubtful which of
CRIMINAL PROCEDURE
several offences can be proved, A may be charged with all of them or in the
alternative. All the charges may be tried in one trial.
2) See Illus (a) & (b) to s.166 CPC
3) Eg. Illus (a) to s.166 CPC – A is accused of an act which may be theft or
receiving stolen property or CBT or cheating. A may be charged with all of
them or in the alternative.
b. Two or more Accused (Joint Trials) – s.170 CPC applies and there are 2 situations:
st
i. 1 Situation – s.170(1) & Illus (a)-(d) of CPC:
1) s.170(1) CPC – There are 2 situations where 2 or more accused may be tried
jointly –
i. A and B commit the same offence or different offences in the same
transaction; or
ii. A is accused of committing an offence and B of abetment or attempt to
Refresher Course
commit the same offence.
2) Examples where joint trial may be held:

i. Illus (a) to s.170 CPC – A & B are accused of the same murder. A & B
may be charged and tried together for the murder.
ii. Illus (b) – A & B are both charged with a theft and B is charged with 2
other thefts in the same transaction. A & B may be tried together.
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36
iii.Jayaraman & Ors – Eight (8) As were allowed to be tried together for 4
charges each for homicide under s.304 PC as they jointly committed the
offences.
iv. Pathmanabhan Nallianen & Ors (Sosilawati’s case) – Four (4) accused
persons were tried jointly in one trial for the murder of 4 persons.
3) Examples where joint trial cannot be held:
i. Illus (c) – A & B being members of opposing factions should be charged
and tried separately.
ii. Illus (d) – A & B are accused of giving false evidence in the same
proceeding. They should be charged and tried separately.
nd
ii. 2 Situation – s.170(2) CPC – provides that –
1) there are 3 categories of offences where the accused persons may be
charged:
a. theft, extortion, CBT, cheating or criminal misappropriation; or
b. receiving or retaining or assisting in disposal of property and
concealment of property which have been transferred after the offence is
st
committed in (a) by the 1 named person; or
c. abetment or attempting any such last-named offence;
2) there may be a joint trial of the following offenders:
i. (a) and (b); or
ii. (a) and (c)
6. Conviction of offence not charged:* [Page 120 QRN]

1. General rule – An Accused should only be convicted for the offence charged.
2. Exceptions – are given under ss.167-169 CPC:
a. s.167 CPC & Illus (read with s.166 CPC): A committed a different offence which
he could have been charged:
i. s.167 CPC – If A is charged with one offence and it appears he committed a
different offence which he was not charged but could have been charged following
s.166, he may be convicted of the offence not charged.
ii. Illus to s.167 CPC – A is charged with theft. It appears he committed CBT or
receiving stolen goods. He may be convicted of CBT or of receiving stolen goods
although not charged for such offence.
iii. Test – Lew Cheok Hin (Taylor J) – 2 stages:
a. The facts of unframed charge were available under s.166 CPC; and
b. The same facts and evidence would be raised by both parties.
iv. Cases –
 Sivalingam (FC) – A was charged for cheating under s.420 Penal Cod. He
could not be convicted for CBT under s.409 Penal Code.
 Gurdit Singh – A was charged and convicted under s.454 Penal Code
(lurking house trespass & theft – now deleted). On revision, the court
substituted with s.380 Penal Code (theft in a building).
b. s.168 CPC – Person charged with one offence may be convicted of attempt.
 Quinn and Howland (CA – S’pore) – A could be convicted for attempted robbery
although he was tried for robbery.
c. s.169(1) CPC & Illus (a) – Particulars of offence proved constitute a ‘minor’
offence:
i. s.169(1) CPC – The offence consists of several particulars but only some of the
particulars are proved which constitute a “minor” offence.

ii. Illus (a) – A is charged under s.407 (CBT by a carrier, wharfinger, etc). It appears
he committed s.406 (CBT). He may be convicted under s.406.
iii. ‘minor offence’ – is by deletion of some of the particulars: Lew Cheok Hin.
iv. Cases:
 Kundan Singh – A was charged under s.147 Penal Code (Rioting) – he
could not be convicted under s.323 Penal Code (Assault) [There are no
particulars in s.147 Penal Code to delete.]
37
 Latip Ahmad – A was charged under s.148 Penal Code (Possessing

weapons or missiles at riot) – he could be convicted under s.147 Penal Code
(Rioting) even though not charged. [There were no weapons or missiles.]
d. s.169(2) CPC & Illus (b) – Where facts reduce to a minor offence:
i. s.169(2) CPC – The facts proved reduce it to a minor offence which he may be
convicted though not charged.
ii. Illus (b) – A is charged under s.325 Penal Code (voluntarily causing grievous
hurt). He proves he acted under grave and sudden provocation. He may be
convicted under s.335 Penal Code (causing grievous hurt on grave and sudden
provocation].
iii. ‘minor offence’ – means less serious offence.
iv. Francis Dang anak Nuya – A was charged under s.302 Penal Code – he could
be convicted under s.304 Penal Code.
7. Multiple Charges:** [Page 121 QRN]

1. Withdrawal of remaining charges on conviction on one or several charges –
i. s.171 CPC – provides that:
(1) When more charges than one are made against A and when conviction is made
on one or more of the charges, the prosecution may with the consent of the Court
withdraw the remaining charge or charges.
(2) Such withdrawal amounts to an acquittal of such charge or charges unless the
conviction is set aside, in which case the said Court may proceed with the charge
or charges so withdrawn.
ii. This is usually done where the offences are committed in one transaction as a
concurrent sentence will be passed. For example, A is charged for rape and robbery of
a girl which were committed in one transaction. If A is found guilty of the rape and
robbery a concurrent sentence will be passed where A serves the heaviest sentence.
Thus, if A is found guilty of rape, the prosecution would likely withdraw the charge of
robbery.
2. Outstanding offences when sentencing:**

i. s.171A CPC – provides:
(1) When A is found guilty of an offence, the Court, in determining and passing
sentence may, with the consent of the prosecution and A, take into consideration
any other outstanding offence or offences which A admits to have committed.
(2) The Court shall record such consent made. Later A shall not be charged for such
CRIMINAL PROCEDURE
outstanding offences unless the conviction made is set aside.
ii. Requirements –
a. The Prosecution must consent;
b. The Accused must consent and admit to have committed the other outstanding
offences;
c. The Court must record the consent of A.
iii. Cases –
 Abang Zailan Abang Zainal – there was no record of the consent of A to take into
account the outstanding offences in sentencing. Held, it was mandatory to record
the consent of A.
 Hashim Pawanchee – The Magistrate had taken into account the outstanding
offences in sentencing but the sentence passed was too excessive.
Refresher Course
CLP
38
12. Sentencing:
1. Principles in sentencing:*
1. s.173(m) and s.183 CPC – the court shall pass sentence according to law i.e. the
punishable section of the law.
2. Jafa bin Daud – the accused shall be punished according to the punishable section of the
law and judicial principles.
3. Punishable section of the Law and jurisdiction of the court:
i. Different statues provide for punishment for different offences – Penal Code, DDA
1952, MACCA 2009, KA 1961, Etc.
ii. Meaning of the words “shall be liable”:
It means the court has discretion whether to impose imprisonment or fine or good
behaviour bond: Man b. Ismail.
iii. Meaning of the words “shall be punished”:
a. Cases which held the punishment is mandatory: Leonard Glen Francis.
b. Cases which held court has discretion to give good behaviour bond: Lim Hong
Chin.
c. Submission – If the word:
i. “or” is present – court has discretion to give good behaviour bond;
ii. “and” is present – court must impose imprisonment.
4. Types of sentences:
a. Death – eg murder, drug trafficking.
b. Imprisonment:
i. Imprisonment for life – (a) 30 years; or (b) natural life (eg under FIPA 1971]
ii. Imprisonment for fixed period:
1. S.282(d) CPC – Effective date is the date sentence is passed unless directed
by the court.
2. Court has discretion to consider detention period: Dato’ Seri Anwar Ibrahim.
iii. Concurrent and consecutive sentences:
1. s.102 SCA 1948 – Court may order sentences to run concurrently or
consecutively.
2. Concurrent sentences - Accused (A) serves the heaviest sentence.
3. Consecutive sentences – A serves the sentences which are added
consecutively.
4. Principles to decide whether concurrent or consecutive sentence:
a. One transaction principle – sentences to run concurrently: Abu
Seman; Amrita Lal Harza.
b. Totality principle – sentences to run consecutively: Sau Soo Kim (FC).
iv. Imprisonment if accused defaults in payment of a fine: s.283(1)(c) CPC.
c. Whipping:
1. s.286 CPC – The Court will direct the place and time.
2. s.103 SCA 1948 – A person sentenced to whipping can be detained in a suitable
place pending the whipping.
3. s.288 CPC – Mode of whipping.
4. s.289 CPC – No whipping in certain cases.
5. No whipping for children (below 18 years): s.91(1) & s.92 CA 2001 are repealed
6. s.311 CPC, s.57(3) CJA 1964 – Stay of execution of whipping.
7. s.289 CPC – No whipping is to be carried out by instalments.
8. s.290 CPC – Requirement of medical certificate.

9. s.291 CPC – Substitution of whipping with imprisonment.
10. s.293(1)(c) – Whipping of a youthful offender.
d. Fine:
1. s.2(1) CPC – Fine may be pecuniary, forfeiture, compensation.
2. Maximum fine – see Chapter 1 on Jurisdiction of Courts.
39
3. s.283(1) CPC – provides a guide on sentence of a fine:

Teo Woo Tin (HC) – The Court said that the magistrate should consider any profit
from the offence; value of subject matter, amount of injury done; and
4. Compensation and costs:
i. ss.173A(3) & 294(2) CPC – are seldom invoked.
ii. s.426 CPC is frequently invoked where the offender has to pay costs of
prosecution and/or compensation to the victim:
 Mohd Johan Mutalib – Compensation under s.426 is only to victim and
not to the Government.
 Raja Izzuddin Shah (HC) – A was given a bond of good behaviour and
was ordered to pay compensation of RM200 to the police officer who
was slapped by him.
iii. s.432 CPC – provides that in default of payment of compensation and costs –
the defaulter may be imprisoned.
e. Police supervision
1. s.295(1) CPC – The court may also order police supervision after the offender has
served his imprisonment term if certain requirements are satisfied: Re Bakar
Ahmad.
2. s.295(1A) CPC – If A is convicted under ss.376. 377C, 377CA or 377E Penal
Code, he shall be subject to police supervision.
3. s.295A CPC – provides for rehabilitative counselling in addition to s.295(1A).
4. s.296 CPC – provides for obligations of person under police supervision.
5. s.297 CPC – provides for penalty for non-compliance with s.296.
6. Circumstances when police supervision is imposed – usually when violence is
used and A is a persistent offender: Abdul Wahab; Haled.
f. Good behaviour bonds (binding over) – s.173A & s.294 CPC

1. Good behaviour bonds are also called ‘binding over”.
2. Power to discharge conditionally or unconditionally :
i. Under s.173A:
1) s.173A CPC – provides that the Court may, without recording a
conviction make an order either to dismiss the charge or give a bond of
good behaviour and in addition may order the offender to pay
compensation and costs.
2) s.173A CPC is available to all offenders including youthful offenders and
CRIMINAL PROCEDURE
government servants as no conviction is recorded.
3) It was invoked in deserving cases: Lim Hong Chin (deserving case) and
Mark Koding (for sedition) but not in Datuk Tan Cheng Swee (for
corruption).
ii. Under s.294 – First offender:
1) s.294 CPC – provides that the court make an order of bond of good
behaviour and direct that the offender pays the costs of the prosecution.
2) It is available only for adults and conviction is recorded.
3) s.294A CPC – states the conditions for a bond.
iii. Differences between s.173A and s.294 CPC:
s.173A CPC s.294 CPC
1. Available to all offenders including children. Available only to offenders who

Refresher Course
are adults.
2. Offence need not be punishable with imprisonment. Offence must be punishable with
imprisonment.
3. Consideration is given to character, antecedent, age, Same.
health, mental condition of offender, trivial nature of
offence, and any extenuating circumstances.
4. Period of bond cannot exceed 3 years. No limit to period of bond.
5. No conviction is recorded in criminal register. Conviction is recorded.
CLP
40
g. Youthful offender
1. s.2(1) CPC – it means a person is between 18-21 years old.
2. s.293(1) CPC – the court may, instead of awarding any term of imprisonment,
order the offender –
a. to be discharged; or
b. to be delivered to his parent or guardian or relative; or
c. if male, to be whipped with not more than 10 strokes of a light cane;
d. in the manner provided by the Child Act 2001; or
e. to perform community service not exceeding 240 hours.
5. Judicial principles:
i. Aims of sentencing – whether the aim is
a. retribution – given in statute: Sargeant;
st
b. deterrent – sentence is heavy – 1 consideration is public interest: Ball;
c. rehabilitative – sentence is lenient – public interest if Accused (A) is induced to
turn to honest living: Ball;
d. protection of public – custodial sentence e.g. serial rapist.
ii. Mitigating factors – sentence is light and good behaviour bond may be given:
a. A pleads guilty – 1/3 reduction: Christopher Khoo; Sharitan a/l Pachemuthu.
st
b. A is young and a 1 offender and comes from a large family: Abdul Karim; Mark
Koding.
c. A loses his job: Lim Kit Siang.
d. A has a long gap of a previous conviction: Soosainathan.
e. A is remorseful and drunk: Raja Izzuddin Shah.
f. A has co-operated with the police.
iii. Aggravating factors – sentence is heavy as deterrence:
a. Previous convictions: Jafa bin Daud;
b. Rampancy of offence – drug, theft, robbery, etc: Teh Ah Cheng – possession of
firearms and ammunition;
c. Status of offender: Datuk Harun Idris; Khairuddin
d. Use of force and mode of committing offence: Safian Abdullah & Anor –
strangled a dying victim.
iv. Impact statement of victim or his family: s.173(m)(ii), s.183A CPC.
2. Distinguish “shall be liable” and “shall be punished” (15 marks) [Q.5(b) Oct 2011]**
[Page 124 QRN]
1. “shall be liable” – presently there is no dispute as to its meaning:
i. It means the court has discretion whether to impose imprisonment or fine or good
behaviour bond: Man b. Ismail;
ii. Jayanathan (FC) – Offence states “shall be liable to not less than 2 yrs and not more
than 5 yrs”. The FC held the court has discretion to impose imprisonment within the
limitations.
iii. Yong Thiam Fatt (HC) – Road Transport offence states “shall be liable to
imprisonment not exceeding 3 months or fine not exceeding RM1,000 or to both”. Held,
the court has discretion whether to impose imprisonment or fine or bond of good
behaviour under s.173A.
iv. Abu Seman – s.11(1) Election Offences Act 1954 – shall be liable to 12 mths in prison
and to a fine not less than RM250 and not exceeding RM1,000. The Magistrate
imposed a fine of RM100. The HC held the max fine must be RM250.
2. “shall be punished” – presently there is still a dispute as to its meaning:

i. Cases which held the punishment is mandatory – court has no discretion and cannot
bind over –
 Phillip Lau – s.4 FIPA 1971 – imprisonment for life and whipping not less than 6
strokes – held life sentence and 6 strokes are mandatory.
 Leonard Glen Francis – s.8 FIPA 1971 – 14 yrs in prison and 6 strokes – HC
substituted the good behaviour bond with imprisonment and min. 6 strokes.
 Nordin Yusmadi (KC Vohrah J) – Under s.376 Penal Code, the punishment of
min 5 yrs in prison is mandatory.
41
ii. Cases which held court has discretion to give good behaviour bond –
 Lim Hong Chin (Chong Siew Fah J) – wording under s.414 PC allows the
discretion of the court to impose imprisonment, or fine or both or a bond of good
behaviour.
 Chew Chee Wah (Abdul Malik Ishak J) – “shall be punished with” per se does not
make imprisonment mandatory due to the phrase “instead of sentencing him at
once to any punishment.
3. Submission –
st
In the 1 Schedule of CPC under Penal Code –
a. if the word “or” is present – the court has discretion to give good behaviour bond;
b. if the word “and” is present – the court must impose imprisonment.
3. Consecutive and concurrent sentences:** [Q.6a Nov. 2016] [Page 126 QRN]
1. s.102 SCA 1948 – The Court may order sentences to run concurrently or consecutively.
2. Concurrent sentences:
i. Accused (A) serves the heaviest sentence.
ii. Example: A was convicted for robbing and raping a girl. He was sentenced to 10 years
imprisonment for rape and 5 years for robbery. He serves only 10 years.
3. Consecutive sentences:
i. A serves the sentences which are added consecutively.
ii. In the above example, A serves 10 + 5 = 15 years imprisonment.
4. Principles to decide whether concurrent or consecutive sentence:
a. One transaction principle:
i. It means charges arise out of the same transaction – sentences to run
concurrently.
ii. Cases:
 Abu Seman – sentences to run concurrently if offences committed in same
transaction.
 Yap Huat Heng – 2 counts of rape to run consecutively – 2 counts of robbery
to run consecutively – robbery to run concurrently with rape.
b. Totality principle:
i. The Court looks at all sentence passed consecutively and decides if they are
excessive in totality – if excessive, the Court may order some sentences to run
concurrently.
ii. Cases:
CRIMINAL PROCEDURE
 Sau Soo Kim (FC) – consecutive sentence of 18 yrs – sentence too
excessive when totality principle applied – reduced to 14 yrs in total.
 Ooi Sim Yim (Mohd Azmi SCJ) – more severe sentence for possession plus
use of firearms – lighter sentence for only possession of firearms.
4. Whipping:** [Q.6b Oct 2013 – 12 ½ marks] [Page 128 QRN]

1. Place of whipping and detention:
i. s.286 CPC – The Court will direct the place and time.
ii. s.103 SCA 1948 – A person sentenced to whipping can be detained in a suitable place
pending the whipping.
2. Mode of whipping –
i. s.288 CPC –
(1) The max strokes must be specified – 24 for adult; 10 for youthful offender (18
years to below 21 years).
Refresher Course
(2) Whipping shall be inflicted on the part as the Minister may direct.
(3) Size of cane – 1/2 inch.
(4) For offences under ss.403, 404, 406-409, 420, or youthful offender, a light rattan is
used and is inflicted by way of school discipline
(5) For several offences – the total shall not exceed 24 strokes for adults and 10 for
youthful offender.
ii. Chai Ah Kau (CA S’pore) – A was 18 years. Held, a total of 20 strokes for 2
convictions for armed robbery was within the max of 48 (24 + 24).
CLP
42
3. Where whipping is not allowed:

i. s.289 CPC – no whipping is allowed on a female; male sentenced to death; male over
50 yrs except under ss.376, 377C, 377CA or 377E Penal Code.
ii. Cases:
 Tuan Mat Tuan Lonik – Sentence of 50 strokes for 5 charges of rape was set
aside as the max is 24 strokes under s.288(5).
iii. No whipping for children (below 18 years): s.91(1) & s.92 CA 2001 are repealed.
4. Stay of execution of whipping:
s.311 CPC, s.57(3) CJA 1964 – provide that whipping is stayed where there is an appeal.
5. When whipping is normally imposed:
i. where violence is used: Ho Kim Luan.
ii. where there are previous convictions: Kharuddin – A had 13 previous convictions;
iii. in certain offences e.g. gang robbery, CBT.
6. No whipping is to be carried out by instalments: s.289 CPC:
 Liaw Kwai Wah (SC) (Abdul Hamid CJ) – after execution of whipping, the High Court
cannot increase the strokes on appeal.
7. Requirement of medical certificate: s.290 CPC.
8. Substitution of whipping with imprisonment: s.291 CPC.
9. Whipping of youthful offender:
s.293(1)(c) CPC – A criminal court may order a maximum of 10 strokes with a light cane
within the Court premises and in the presence (if he agrees) of his parent or guardian.
5. Stay of execution of sentence [Q.4(c) Oct 2010 –10 marks]*

(i) Which court must the application for stay of execution be filed pending appeal.
1. s.311 CPC – Except for whipping, no stay of execution on any judgment, order,
conviction or sentence shall be allowed unless the court below stays the execution if it
thinks just and on payment of a reasonable sum as security.
2. Thus, the Accused is advised to apply to the subordinate court.
(ii) When and how the application is to be made.
1. The accused is first advised to apply to the subordinate court orally or by motion
supported by affidavit.
2. If the subordinate court refuses then he may apply to the High Court by motion
supported by affidavit.
(iii) What must he prove in order that a stay of execution be granted pending appeal:
The accused must prove on the grounds that –
a. it is just;
b. there is a good chance of him succeeding in the appeal;
c. medical reasons.
6. Discuss guilty plea as a mitigating factor:* [Q.6b Oct 2010 – 7 marks]

1. For capital offences e.g. murder, drug trafficking – the punishment is a mandatory death
sentence. Thus, a guilty plea is not a mitigating factor. It is up to the Pardons Board to
recommend that the death sentence be substituted with life imprisonment. The defence may
plead for the court to tamper justice with mercy and impose a sentence of life imprisonment
instead.
2. For other offences where the sentence is not death –
i. A guilty plea is a strong mitigating factor as it saves the time for litigation as well as
saves costs as seen in –

 Sau Soo Kim – The FC held a guilty plea is a mitigating factor for attempt to
murder and unlawful possession of firearms.
 Christopher Khoo (CA) – If A pleads guilty, normally 1/3 imprisonment term is
reduced.
 Sharitan a/l Pachemuthu – A pleaded guilty and co-operated with the police for
the offence of drug possession. One-third reduction of imprisonment was given
and A was sentenced to 6 years imprisonment and 10 strokes.
43
ii. However, a guilty plea does not reduce the sentence in the following cases:
 Ismail bin Rashid – The HC upheld the 14 years imprisonment for raping his
daughter.
 Ang Chai Seng – The CA upheld sentence of 18 years imprisonment and 10
strokes for drug possession.
st
 Vinaga Moorthy Gopal – The CA upheld 12 years imprisonment for s.304 1 limb
Penal Code.
st
 Kesavan a/l Baskaran – The CA upheld 14 years imprisonment for s.304 1 limb
Penal Code.
13. Appeals and Revisionary Powers of High Court

13.1 Appeals
1. Important Concepts:
1. Jurisdiction of appellate courts: [Chapter 1 QRN]
Federal Court Inherent Jurisdiction (r.137 RFC 1965)

ss.86,87 CJA 1964
s.84 CJA 1964
Court of Appeal Inherent Jurisdiction (r.105 RCA 1964)
s.50(1) CJA 1964
High Court Inherent Jurisdiction (Karpal Singh)

s.26 CJA 1964 s.26 CJA 1964
Magistrates Court Sessions Court
2. Two-tier system of appeal is practised – If it originates from:

st nd
a. Subordinate court: 1 appeal to HC; 2 appeal to CA.
st nd
b. High Court: 1 appeal to CA; 2 appeal to FC.
3. When can appeal or seek revisionary powers of High Court:

Ang Gin Lee:
i. Appeal – Order must be final which disposes of the rights of the parties;
CRIMINAL PROCEDURE
ii. Revisionary powers – Order is not final or defects in procedure.
4. Whether appellate courts may interfere with finding of facts:

i. The Appellate Court should rarely interfere with the conclusions of the trial judge who
saw the demeanour of the witnesses: Chia Han Kiat.
ii. However, the Appellate Court may interfere on the following grounds:
a. The grounds of judgment did not convey a reasoned judgment and were merely a
conclusion: Balasingham.
b. The magistrate did not state in his grounds of judgment the findings of all facts
which established the ingredients of the offence: Augustine.
c. The finding of fact is not supported by evidence: Dato’ Yap Peng.
d. The material facts were not considered: Vijaya Raj.
Refresher Course
e. The finding is based on defective inferences: Abang Abd Rahman.

f. The statement was not voluntary: Hasibullah bin Mohd Ghazali.
g. There was no specific finding of fact and the finding of fact was only an inference
drawn from facts: Ma’arif.
h. The trial judge did not evaluate and weigh all the evidence of the prosecution and
the defence and also did not determine whether the prosecution has made out its
case beyond a reasonable doubt: Mat; Mohd. Radhi.
CLP
44
5. Death of parties to appeal:

i. s.320 CPC – Every appeal under s.306 (i.e. appeal against acquittal) shall finally abate
on death of accused, and every other appeal (except an appeal against sentence of
fine) shall finally abate on death of appellant.
ii. Choo Cheng Liew (PR of Est of Sunny Yap, dec’d) (FC) – The Appellant died
nd
pending appeal against conviction and sentence. Held, the 2 limb of s.320 provides
that an appeal shall abate for sentence of imprisonment only. Here, the appeal was on
sentence of imprisonment and fine. Thus, the appeal shall not abate and the hearing of
the appeal was ordered.
6. Filing of documents:
i. Fax is not allowed: Ismail Abdul Wahab (CA); Mohd Hussein Mohd Kassim (CA).
ii. Electronic filing is allowed – eg WhatsApp, email: r.80A RCA 1994; r.113A RFC 1995:
Yam Kong Seng.
2. Procedure to appeal from subordinate court to High Court:** [Q.5a Oct 2010 – 25 marks]
1. File Notice of Appeal:
a. When & where – 14 days from Judgment, Sentence or Order with the clerk of the
Subordinate Court: s.307(1) CPC.
i. Computation of 14 days – KFC v LBPJ – s.54(1) Interpretation Act – excludes
day of happening.
ii. Extension of time – s.310 – apply to the HC giving good reasons
b. How:
i. In writing (letter) – in triplicates – addressed to the HC.
ii. Address for service must be given and signed by the Prosecution: s.307(2).
iii. Fax cannot be used: Ismail b. Abdul Wahab (CA) but electronic filing is allowed:
Yam Kong Seng.
c. Service of notice of appeal – The Subordinate Court will serve a copy of the notice of
appeal to the Defence and the Subordinate Court.
2. Notes of Evidence and Grounds of Decision:
a. Preparation – The Subordinate Court must prepare notes of evidence and grounds of
decision (judgment) – The Magistrate or Judge has to prepare at convenient speed: TN
Nathan.
b. Notes of evidence:
i. The Prosecution is entitled to request for notes of evidence: Tan Tho Kim.
ii. When ready – the Sessions Court will inform the Prosecution who can obtain free:
s.307(5).
c. Grounds of decision:
i. The Subordinate Court shall make a signed copy of the grounds of decision and
serve it on the Prosecution: s.307(3).
ii. Balasingham – the grounds of decision must convey a reasoned judgment and
not merely a conclusion.
3. File Petition of Appeal:

a. Where and when:
i. The petition of appeal has to be filed with the clerk of the Subordinate Court in
triplicate copies addressed to the HC within 14 days after notes of evidence are
available (if the Prosecution requests) or when the ground of decision is served on
the Prosecution (whichever is longer): s.307(4) & (5):

ii. Computation of 14 days – KFC v LPPJ – s.54(1) IA excludes the day of
happening.
iii. Non-compliance – the appeal is deemed withdrawn: s.307(9).
iv. Extension of time – s.310
 Veerasingam – The HC has discretion to grant extension – for substantial
justice.
 Ishak b Hj Shaari – change of solicitor – extension is allowed.
45
b. How:
i. In Form 51 – must state the substance of judgment appealed against and the
grounds of appeal on points of law, or fact or both: s.307(6).
ii. Fax cannot be used: Ismail b. Abdul Wahab (CA) but electronic filing is allowed:
Yam Kong Seng.
4. Transmission of Appeal Record:
i. The Subordinate Court shall transmit the appeal record (record of proceedings,
grounds of decision, notice of appeal, petition of appeal) to the HC, the Defence/
advocate: s.308.
ii. The Judge shall hand the appeal record to the Registrar to set down for trial and the
parties shall be notified of the hearing date.
5. Hearing:
i. All parties present – Order of submission – submission by the appellant – then the
respondent – then reply by the appellant: s.313(1).
ii. Appellant absent – The HC may consider the appeal and make any order as it thinks
fit or refuse to consider the appeal: s.313(2).
iii. Respondent absent – The HC may adjourn the hearing (if the notice of appeal not
served on respondent) or proceed to hear the appeal (if the notice cannot be served):
s.314.
iv. Fresh evidence – may allow fresh evidence: s.317. Mohamed b Jamal – The FC
approved 4 conditions by Lord Parker CJ in Parks – evidence Not available; Credible,
Relevant; Chances of reversing judgment are good (NCRC).
6. Judgment:
i. Powers of the HC - May confirm, reverse or vary the judgment; may order a retrial or
make other orders it thinks just; or dismiss the appeal: s.316.
ii. May give judgment in open court or reserve judgment on another date: s.318.
3. Procedure of appeal from High Court to Court of Appeal: [Q.5b July 2010 – 13 marks]
1. Application for leave of CA:
i. Leave is required only if it originates from the MC and the accused (D) appeals: s.50(2)
CJA 1964. [If the prosecution applies or if it originates from the Sessions Court or the
HC – no leave required.]
ii. D must apply for leave of the CA within 14 days from date of decision of the HC:
CRIMINAL PROCEDURE
s.50(2A).
2. File Notice of Appeal :
i. After obtaining leave of the CA, D must then file a notice of appeal in writing with the
Registry of the HC within 14 days after grant of leave: Proviso to s.51(2).
ii. Fax cannot be used: Ismail b. Abdul Wahab (CA) but electronic filing is allowed: r.80A
RCA 1994; Yam Kong Seng.
iii. Extension of time – good reasons: s.310 CPC; s.56 CJA.
iv. Stay of execution – at the discretion of the HC or the CA – there is an automatic stay
for sentence of death and/or whipping: s.311 CPC.
3. Grounds of Decision:
i. The HC Judge must prepare grounds of decision in writing: s.52(1) – no time frame – it
is expected with convenient speed:
 Tan Hun Wah (SC) – 3 yrs 3 mths delay – prejudiced accused – conviction
quashed.
Refresher Course
 Lorrain Phylis Cohen (SC) – once the Judge has given the grounds of judgment
– he cannot add with an addition of the grounds of judgment.
ii. The Registrar will notify the appellant (D) when the grounds of decision is ready.
4. File Petition of Appeal:
i. Time & no. of copies – 5 copies within 10 days after receiving notice that grounds of
decision ready: s.53(1) CJA.
ii. Computation of 10 days – KFC v LPPJ – s.54(1) IA – excludes the day of happening.
CLP
46
iii.Place to file – conflict:

a. s.53(1) CJA – at Registry of the HC
b. Rule 65 Rules of CA (RCA) – with Registrar of the CA
c. In practice – file with the Registrar of the CA – will give copy to the HC.
iv. Fax cannot be used: Ismail b. Abdul Wahab (CA) but electronic filing is allowed: r.80A
RCA 1994; Yam Kong Seng.
v. Non-compliance – the appeal is deemed withdrawn: s.53(3) CJA.
vi. Extension of time – need good reasons: s.56 CJA.
5. Transmission of Appeal Record:
i. The HC shall transmit the appeal record (record of proceedings, grounds of decision,
notice of appeal,
ii. The CA may:
a. reject the appeal or grant leave to amend the grounds of appeal: s.58 CJA – if the
CA rejects then it is final – no further recourse; or
b. set the appeal down for hearing: s.59 CJA.
6. Hearing:
i. Order of submission – submission by the appellant – then respondent – then reply by
the appellant: s.60(1) CJA; r.74 RCA
ii. Fresh evidence – Ct may allow fresh evidence: s.61(1) CJA:
 Mohamed b Jamal – The FC approved 4 conditions by Lord Parker CJ in Parks –
evidence Not available; Credible, Relevant; Chances of reversing judgment are
good (NCRC).
7. Judgment:
i. Powers of the CA - May confirm, reverse or vary the judgment; may order retrial or
make other orders it thinks just; or dismiss the appeal: s.60(1) CJA.
 Dato’ Mokhtar Hashim (FC) – dismissed the appeal against misdirection by the
trial court in impeachment proceedings.
 Ramli b Kechik (SC) – dismissed the appeal against the trial court’s decision to
call fresh evidence from the chemist.
 Khoo Hi Chiang (SC) – dismissed the appeal against the trial court’s decision that
there was a prima facie case.
ii. Judgment – may be in open court or reserve judgment on another date: s.62 CJA.
4. Matters appealable to FC and procedure [Q.2a October 2011 – 15 marks]

1. Matters appealable to the FC:
i. s.87(1) CJA – The FC shall have jurisdiction to hear and determine appeals from any
decision of the CA in criminal matters decided by the HC in its original jurisdiction.
ii. “decision” in s.87 CJA – means judgment, sentence or order which is final and
disposes of the rights of the parties: Ang Gin Lee.
iii. s.87(3) CJA 1964 – The appeal may lie on a question of fact or of law or both.
2. Procedure to appeal to the FC:

a. Notice of Appeal:
i. File notice of appeal in writing with the Registry of the CA within 14 days after
decision of the CA: s.87 CJA; r.88 RFC 1995.
ii. If the prosecution appeals – it must be signed by the PP or any officer with the
PP’s written consent: s.87(2) CJA.
iii. Fax cannot be used: Ismail b. Abdul Wahab (CA) but electronic filing is allowed:
r.113A RFC 1995; Yam Kong Seng.
b. Grounds of Decision:
The CA must prepare grounds of decision and:

i. transmit to the FC: r.91 RFC 1995; and
ii. serve on both parties: r.93 RFC.
c. File Petition of Appeal:
i. File petition of appeal within 10 days after service of the grounds of judgment: r.95
RFC.
ii. Fax cannot be used: Ismail b. Abdul Wahab (CA) but electronic filing is allowed:
r.113A RFC 1995; Yam Kong Seng.
iii. Extension of time – The FC has discretion – need good reasons.
47
d. Transmission of Appeal Record:

i. The CA shall transmit the appeal record (record of proceedings, grounds of
decision, notice of appeal, petition of appeal) to the FC, PP and advocate/D: r.91
RFC
ii. FC may:
a. reject appeal: s.90 CJA; or
b. set appeal down for hearing: s.91 CJA.
e. Hearing:
i. Order of submission – submission by the appellant – then the respondent – then
reply by the appellant: s.92 CJA; r.104 RFC.
ii. Fresh evidence – may allow fresh evidence: s.93 CJA:
 Mohamed b Jamal – The FC approved 4 conditions by Lord Parker CJ in
Parks – evidence Not available; Credible, Relevant; Chances of reversing
judgment are good (NCRC).
f. Judgment:
i. Powers of FC - May confirm, reverse or vary the judgment; may order retrial or
make other orders it thinks just; or dismiss the appeal: s.92(1) CJA.
 Dato’ Mokhtar Hashim (FC) – dismissed the appeal against misdirection by
the trial court in impeachment proceedings.
 Ramli b Kechik (SC) – dismissed the appeal against the trial court’s decision
to call fresh evidence from the chemist.
 Khoo Hi Chiang (SC) – dismissed the appeal against the trial court’s
decision that there was a prima facie case.
ii. May give judgment in open court or reserve judgment on another date: s.94 CJA.
13.2 Revisionary Powers of High Court** [Page 155-156]

1. Purpose:
1. To prevent miscarriage of justice due to error in judgment and procedure as well as from
indolence by those in authority: Hari Ram Seghal (Wan Yahya J).
2. Where the record of the lower Court shows no offence or A is subjected to vexatious and
groundless prosecution: Ramanathan Chettiyar v Subrahmanya Ayyar.
3. Roslan Imun –The revisionary powers have to be exercised sparingly and only when there
appears to have been a miscarriage of justice or a perverse or unreasonable decision.
2. Power of High Court:
CRIMINAL PROCEDURE
1. ss.31 & 35 CJA 1964 – The High Court may exercise its powers of revision.
2. Under CPC –
i. s.323(1) – The High Court is empowered to call for records of inferior courts to satisfy
himself as to the correctness, legality or propriety of any finding, sentence or order
recorded or passed and as to the regularity of any proceedings of such inferior court.
ii. s.324(1) – On examining the record under s.323 or otherwise, the Judge may direct the
magistrate to make further inquiry into –
a. any complaint which has been dismissed under s.135; or
b. the case of any accused person who has been discharged.
iii. s.325 – Powers of the Judge on revision:
(1) The Judge may –
i. stay execution (s.311);
ii. arrest the respondent (s.315);
iii. make decisions as in appeal under s.316; and
Refresher Course
iv. order fresh evidence to be taken (s.317).

(2) No order will be given if it prejudices A unless A is given an opportunity to be
heard.
(3) The Judge cannot convert a finding of acquittal into conviction:
Re Pang Po Pah – The High Court cannot convert the finding of acquittal to
one of conviction but may order a retrial or further inquiry.
CLP
48
3. Procedure to seek revision:

1. Normal procedure –
a. a formal application is made to the High Court;
b. the sub Court informs the High Court;
c. in an appeal – the High Court Judge may use its revisionary powers.
2. Re A Juvenile – The High Court used its revisionary powers when it received an undated
and unsigned letter.
3. Muhari b Mohd Jani (KC Vohrah J) – The revisionary powers of the High Court may be by
newpaper reports; letters; requests by sub courts; formal application. In this case the
accused’s brother sought revision by formal application.
4. Whether the High Court may revise matter not arising from the record of proceedings:
1. Hari Ram Seghal (FC) – The Accused wanted to appeal against his conviction but there
were no notes of evidence and no grounds of judgment. The High Court invoked its
revisionary powers and quashed the conviction. The Federal Court held if there is no record
of proceedings in an appeal, the High Court cannot invoke its revisionary powers to acquit.
A retrial ordered.
2. cf. Jaafar b Abu (SC) – The Accused appealed against his conviction. Only the notes of
evidence were available but not grounds of judgment. The High Court used its revisionary
powers and confirmed the conviction.
3. The reason for the conflicting decisions is that in Hari Ram Segal, both the notes of
evidence and the grounds of judgment were not available whereas in Jaafar b Abu, the
notes of evidence were available.
5. If a decision can be appealed, the revisionary power should not be resorted to unless in
very exceptional circumstances and for very good reasons: Mohd Dalhar b Redzwan.
6. Whether parties should appear when the High Court invokes its revisionary powers:
1. s.36 CJA 1964 – Parties must have the opportunity to be heard.
2. s.326 CPC (read with s.325(2)) – No party has a right to appear before a High Court unless
allowed.
3. s.325(2) CPC – Any order made must not prejudice A unless A is given an opportunity to be
heard.
4. Roslan b Yahya (Gunn Chit Tuan J) – The Court applied ss.325 and 326 and allowed A
and DPP to appear and address the Court.
5. Mohd Tarmizi (FC) – The High Court was wrong in not allowing the prosecution to be
heard. A retrial ordered.
7. Differences between appeal and revision:** [Q.2c Oct 2013]
Appeal Revision
1. s.304 CPC – no appeal if the amount does

The amount is irrelevant.
not exceed RM25.
2. s.305 – no appeal against conviction when A
A can seek revision if he does not understand the
pleads guilty except on sentence.
nature and consequence of his guilty plea.
3. s.306 – Appeal against acquittal requires
There is no need to seek the written sanction of the
written sanction of the PP.
PP.
4. s.307(1) – Any person can appeal against
It is invoked to correct or prevent miscarriage of
judgment, sentence or order …..
justice from error in judgment and procedure: Hari
Ram Seghal.
5. Procedure – notice of appeal, notes of
Procedure – newspaper report, letter, request by

evidence, grounds of decision, petition of
sub ct, formal application: Muhari b Mohd Jani.
appeal, transmission, hearing, decision.
49
14. Inquest of Death & Miscellaneous

14.1 Inquest of Death:
1. Purpose of an Inquest:
1. An Inquest is an official enquiry into the cause of a sudden, unexplained or violent death of a
person.
2. Practice Direction 1/2007 – states that
i. An Inquest may be held –
a. To identify who the deceased was;
b. To determine how, when and where the deceased came by his death; or
c. To find out if the death of the deceased was caused by the act or omission to act
of person(s).
ii. A Magistrate must hold an Inquest if –
a. any person dies in custody of police [s.334 CPC]; or
b. any person dies in the care, or in circumstances that raise doubt about the
deceased’s care; or
c. the Public Prosecutor directs a Magistrate to arrange for an inquest to be held into
the death [s.339 read with ss.328 and 329 CPC].
2. Statutory Provisions:
s.328 CPC – Meaning of “cause of death”:
s.329 CPC – Duty of police officer to investigate death:
s.330 CPC – Duty of officer to arrange for the post-mortem examination in certain cases:
s.331 CPC – Post-mortem examination of body:
s.332 CPC – Report of Government Medical Officer:
s.333 CPC – Duty of Magistrate on receipt of report:
s.334 CPC – Inquiry into cause of death of a person in custody of police or in any asylum:
s.335 CPC – Powers of Magistrate:
s.336 CPC – Magistrate may view body:
s.337 CPC – Inquiries to be made by Magistrate:
s.338 CPC – Evidence and finding to be recorded:
s.339 CPC – Power of Public Prosecutor to require inquiry to be held:
s.340 CPC – Admissibility of medical report in certain cases:
CRIMINAL PROCEDURE
s.341 CPC – Custody of proceedings:
s.341A CPC – Power to revise:
3. Types of verdicts:
Practice Direction 1/2007 – the verdicts in an inquest or inquiries of death are –
a. Open verdict – the cause of death is unknown;
b. Misadventure (Sudden death) – the cause of death is due to an accident; or
c. Death caused by a person or persons unknown (Homicide).
4. Cases –
 Re Loh Kah Kheng (deceased) – An inquiry was made with regard to the death due to
eating “loh shee fun” suspected of containing excessive boric acid.
 PP v Muhari b Mohd Jani & Anor – An inquiry was held to determine the cause of death of
a suspect in police custody during investigation in the “Cheras Tunnel Rats case”.
Refresher Course
 Teoh Meng Kee v PP (CA) – In an inquiry into the death of Teoh Beng Hock the
Magistrate’s Court and the High Court gave an open verdict beyond a reasonable doubt.
The Court of Appeal held that in inquests of death the 3 types of verdicts that may be given
by Magistrates and Sessions Court Judges are (a) an open verdict; (b) a verdict of
misadventure; and (c) death caused by person or persons unknown. In this case the verdict
was an open verdict but the standard of proof should be on a balance of probabilities. Since
there were bruises to Teoh’s neck before the fall, the correct verdict should be death caused
by person or persons unknown.
CLP
50
14.2 Miscellaneous
1. Use of common law [Q.1a Aug 2016 – 8 marks]
1. s.5 CPC – If there is a lacuna in the Criminal Procedure Code (CPC), common law can be
used provided it does not conflict with the CPC.
2. Examples where common law is used:
a. Arrest by private person – s.27 CPC:
i. Indian cases (Durga Singh, Katar Singh), Singapore case [Metro (Golden Mile)
Pte Ltd v Paul Chua]. ‘in his view’ means ‘in his sight’.
Malaysian case – Sam Hong Choy – it means ‘in his sight’ and ‘in his opinion’.
ii. John Lewis & Co Ltd v Tims – detaining suspected shoplifters until managing
director and chief store detective arrived was not unnecessary delay.
b. Grounds of arrest:
Christie v Lechinsky – there is no need to inform him of the grounds of arrest if he
should know or if it is impossible.
c. Seizure under common law:
i. Chic Fashion v Jones – Police seized other items not “Ian Peters” – lawful.
ii. Ghani v Jones – Police seized the passports of the suspects in a murder case –
unlawful as passport of owner cannot be stolen or found in circumstances offence
has been committed.
iii. Note: s.435 CPC – Police can seize things believed to be stolen or found in
circumstances an offence has been committed. Thus, there is no need to use Chic
Fashion.
iv. Kuruma, King, Sang – Illegally obtained evidence is admissible unless it is
confession.
d. First Information Report:
Emperor v Khwaja Nazir Ahmad – FIR is not a condition precedent to commence
police investigation.
e. Voluntariness of statement:
i. Priestly – Sachs J – oppression means it has sapped the free will.
ii. Fulling – oppression means the exercise of authority of power in burdensome,
harsh or wrongful manner, unjust or cruel treatment, imposition of reasonable or
unjust burden.
f. Charge:
Lim Bah & Ors v Opium Farmer – A charge must be certain and properly framed.
g. Sentencing:
i. Sargeant – Lawton LJ – sentencing is no longer ‘eye for an eye’ – legislation
imposes punishments for different types of crimes.
st
ii. Ball – Hilbery J – 1 consideration in sentencing is public interest if the
punishment can deter the offender and likely offenders; also public interest is best
served if offender is induced to honest living.
h. Appeal – admissibility of fresh evidence:
Parks – Parker CJ – evidence must not be available at trial, must be relevant and
credible, and would have created a reasonable doubt in the lower court.
51
15. Very Important Topics

1. Courts are open and the exceptions
2. Jurisdiction of First Class Magistrate’s Court – Gan Boon Aun (Updates 2020)
3. Meanings of seizable and non-seizable offence – s.2 CPC
4. Meanings of summons case and warrant case – s.2 CPC
5. Arrest by private person – s.27 CPC
th
6. Search of body of a person – 4 Schedule in CPC
7. Search without a search warrant and the procedure during search
8. S.51 and s.51A CPC
9. First Information Report and the issues
10. Admissibility of statements under s.113 CPC and the exceptions (DDA 1952, KA 1961, MACCA 2009,
AMLATA 2001) (Updates 2020)
11. Procedure on receiving FIR – non-seizable offence, seizable offence, suspected to be seizable
12. Relationship between s.113 CPC and Evidence Act 1950 (Updates 2020)
13. Remand order – s.117 & s.119 CPC
14. Powers of PP to institute, conduct and discontinue
15. Transfer of cases by Prosecution or Accused
16. Modes of impeaching the credit of a witness (Updates 2020)
17. Circumstances when accused appears or is brought before a court and the objections considered by the
court (Updates 2020)
18. Before the charge is read – what the counsel of the accused can do – letter of representation to plea
bargain (Updates 2020)
19. Procedure after the accused pleads guilty
20. Withdrawal of guilty plea
21. When can the Court grant a DAA or DNAA
22. Alibi witness – defence
23. Expert witness – s.399 CPC
24. Adjournment – s.259 CPC
25. Opening address in the High Court
26. Differences between Summary Trials and High Court Trials
27. Court for Children – S.83 Child’s Act 2001
28. Orders Court for Children can make – s.91 CA 2001
29. Order for child to be imprisoned – s.96 CA 2001
30. No death punishment for a child – s.97 CA 2001
CRIMINAL PROCEDURE
31. Bail for non-bailable offence – s.388 CPC [Updates 2020 – Proviso to s.388(1)]
32. Revocation of bail
33. Bail pending appeal against conviction (s.311 CPC) and against acquittal (s.315 CPC)
34. Appeal or Application or Revision against bail decisions
35. Purpose of a charge and the legal requirements (ss.152, 153, 154 CPC) (Updates 2020)
36. Amendment of charges
37. Duplicity of charges
38. Joint trial
39. Multiple charges – withdrawal (s.171 CPC) and outstanding offences in sentencing (s.171A CPC)
40. Meaning of “shall be liable” and “shall be punished” in sentencing
41. Consecutive and concurrent sentences
42. Whipping
43. Procedure of appeal from subordinate court to High Court
44. Revisionary power of High Court and differences between appeal and revision
Refresher Course
CLP

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CLP Refresher Course

Published by Brickfields Asia College

©Brickfields Asia College Sdn Bhd

First edition: AUGUST 2020

LB: YAN U/B: YAN/08/20

1. Jurisdiction of Courts ...................................................................... 1

CRIMINAL PROCEDURE REFRESHER COURSE

3. Jurisdiction of Sessions Court:

2. Sentencing jurisdiction – any sentence except death: s.64 SCA 1948

4. Jurisdiction of High Court:

5. Appellate jurisdiction of Court of Appeal:* [Page 5 QRN]

7. Inherent powers of superior courts:* [Pages 4,5&7 QRN]

8. Local Jurisdiction and extra territorial offences:* [Page 8 QRN]

2. Seizable offence and non-seizable offence:** [Page 11 QRN]

3. Summons case and warrant case:** [Page 12 QRN]

iii. Reasonable suspicion: Tan Eng Hoe; Shaaban;

5. Arrest by a private person:** [Page 16 QRN]

6. Remedies for unlawful arrest and detention:

7. Rights of Arrested Person and Rights of Accused:* [Pages 17, 86]

b. Rights of accused person who has been charged:

9. Search with a warrant: [Page 23 QRN]

10. Search without a warrant:** [Page 24 QRN]

2. Search under s.62 CPC:

4. Summary search under s.63 CPC:

5. Search under s.116 CPC:

6. Search and Seizure and Interception of Communications in relation to security

7. Search under s.112 Child Act 2001:

4. Procedure by police on seizure of property:

12. Search and seizure under Common Law:

13. Summons to produce and Delivery of Document or Thing:** [Page 26 QRN]

2. Delivery of certain documents:

2. Differences between FIR and a Complaint:* [Page 33 QRN]

investigation but it is not a condition precedent: Emperor v Khwaja Nazir Ahmad

2. If it is a non-seizable offence, the investigation officer may refer the complainant to a

3. Recording of statement under s.112 CPC* [Page 37 QRN]

4. Admissibility of statement:** [Page 38-39 QRN]

ii. Confession of the accused are not admissible.

b. Under s.16 Kidnapping Act 1961 –

c. Under s.53 Malaysian Anti-Corruption Commission Act (MACCA) 2009 -

d. Under s.72 Anti-Money Laundering, Anti-Terrorism in Financing and Proceeds of

b. Whether Accused can be impeached:

6. Procedure on Receiving FIR:** [Page 35 QRN]

7. Procedure if Investigation cannot be completed within 24 hours:** [Page 36 QRN]

(2) The Magistrate may grant remand orders as follows:

3. Remand Order v Bail for Bailable Offence:

4. Detention under Security Offences (Special Measures) Act (SOSMA) 2012:

8. Summary of Entitlement of Accused to Statements Before Trial:* [Page 42 QRN]

Type of Statement Whether Entitled Authority

6. Intelligence Report No – security reasons Huzir b Hassan.

4. Powers of Public Prosecutor and Initiation of Proceedings:

2. Institute criminal proceedings:

iv. Requirement of consent or sanction of the PP for certain offences before

a. Trial is a nullity: Datuk Mahinder Singh;

4. Discontinuance of Proceedings (Nolle Prosequi):**

2. Other Powers of Public Prosecutor:* [Page 48 QRN]

b. Other powers of PP:

3. Private Summons:* [Page 57 QRN]

6. Issue of summons to the accused:

i. s.41A DDA 1952 – provides for 2 types of offences: