Cases for CPC midterm PDF

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Criminal Procedure Chapter 1 Capt Kamarul Azman Jamaluddin v Lt Col Wan Abdul Majid Abdullah Mersing Omnibus v Minister of Labour Manpower Secretary of State for Defence v Warn Bunya Jalong v PP 5 CLJ 893 Rossarin Nuekaew v PP MLJU 1156 In Court Martial, the oath was administered to the president an...

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Criminal Procedure Chapter 1 Capt Kamarul Azman Jamaluddin v Lt Col Wan Abdul Majid Abdullah

Mersing Omnibus v Minister of Labour & Manpower Secretary of State for Defence v Warn Bunya Jalong v PP [2015] 5 CLJ 893 Rossarin Nuekaew v PP [2017] MLJU 1156

In Court Martial, the oath was administered to the president and each member of the court and to the judge-advocate by an Islamic religious teacher instead of by the judge-advocate as prescribed by the Rules of Procedure. Held: -failure to observe the mandatory provision of the Rules of Procedure is undoubtedly a serious matter but in this case the administration of the oath by a person who was not the prescribed person was an error of procedure which did not go to the constitution of the court. -in this case the failure to comply with the rules did not lead and could not reasonably be expected to lead to substantial and grave injustice being done and therefore the appeal should be dismissed. -"Procedural sections are usually mandatory and there is nothing which points to the contrary in this case", Secretary of State for Defence v Warn. - In the matter before us the terms of Order 53 rules 1 and 1A clearly reflect the imperative requirements which must be complied with before an application for certiorari can be made. The presumption is that criminal procedures are mandatory unless proven otherwise. -followed by Kamarul Azman & Mersing Omnibus When a trial is in breach of s.163 and not saved by s.164 or s.165 of the CPC, it constituted an illegality which cannot be cured under s.422 of the CPC S.402B: statement admitted in evidence shall be read aloud at the trial, unless the Court otherwise directs. -Court could use its discretion, when it considered it appropriate and with the concurrence of all parties, to dispense with the requirement that the witness statement must be read aloud. -This is to avoid an unnecessary lengthy reading of such statement in court so as not to defeat the purpose for the insertion of s.402B into the CPC, which was to provide a speedy disposal of criminal cases. -The requirement under s.402B(6) was only directory and not mandatory. It could be dispensed with if the court found it appropriate to do so and was satisfied that no failure of justice would be occasioned by such dispensation. -It was merely an irregularity and not an illegality and was curable under s.422 of the CPC.

-s.422: we must follow the procedures laid in CPC, however, if we fail to follow the procedure and such failure will lead to minor breach, it can be cured by this provision. S.2 - refer to the definition of words in CPC first, then only can refer to Penal Code and Police Act 1967. -s.2(3): if the words in CPC not defined by CPC, can apply the definition in PC and PA. Must apply CPC 1 st. Abdul Ghani bin Jusoh v The then FC appeared to have erred in this regard when straightaway referred to the provisions PP of the Police Act 1967 in deciding whether a Probationary Inspector was as ‘Inspector’ for the purpose of S.113(1). -A ‘probationary inspector’ would be considered to be an ‘inspector’ for the purpose of s.113(1) of CPC. PP v Yeong Yin Choy It is not limited to first offender (shoulder notes only provide an aid for easy reference, does not [1980] MLJ 80 affect the construction of the code.E.g, s.294 states on the shoulder note regarding the first offender) -Seizable Offences - may arrest w/o warrant For PC offences: refer 3rd Column, 1st Schedule For non-PC offences: refer the statute/Last Part, 1st Schedule (punishable with imprisonment more than 3 yrs/death). -Non-seizable Offences - shall not arrest w/o warrant For PC offences: refer 3rd Column, 1st Schedule For non-PC offences: refer the statute/Last Part, 1st Schedule (punishable with imprisonment less than 3 yrs/with fine only) S.3 -General rule: All offences under the PC & offences in statutes other than PC are to be tried according to the CPC. -Exception: If a specific statute lays down a specific procedure , the provision will prevail. Chu Beow Hin [1982] 1 In the absence of any express provisions of the Price Control Act, the Court can only exercise the MLJ 135 FC provisions of s.407 of the CPC. PP v Chew Siew Luan Dangerous Drugs Act 1952 - Being a general legislation must ex-necessitate yield to the specific [1982] MLJ 119 FC provision of S.41B of DDA relating to bail.

S.4 -Nothing in this Code shall be construed as derogating from the powers of the HC. PP v Saat Hassan [1988] “This section expressly preserved the inherent jurisdiction of the HC to make any order 2 CLJ (Rep) 290 necessary to give effect to other provisions under the Code or to prevent abuse of the process of any Court or otherwise to secure the needs of justice.” Tan Boon Hock v PP The power of an appellate court to order a retrial on a proper charge before another magistrate [1979] 1 MLJ 236 when it is of the opinion that an accused was convicted on a wrong charge is discretionary. -s.4 of the CPC says nothing in the Code shall be construed as derogating from the powers/jurisdiction of the High Court. -The appellate jurisdiction of the High Court is clear. PP v Dato’ Mat Safuan -In the absence of any express provision in the CPC to the contrary, a Judge of a High Court may [1991] 2 CLJ 1112 by virtue ofs. 4 of the CPC exercise his discretionary power unders. 35 of the Courts of Judicature Act 1964as the words "In addition to the powers conferred on the High Court by this or any other written law" must refer to other additional supervisory or revisional powers over and above those powers which are already contained in the Courts of Judicature Act itself as well as in any other written law such as the power conferred by the CPC. -If the High Court is to fulfil its supervisory role in providing a speedy and efficacious redress of any injustice arising out of a person's pre-trial detention, then it must be given an unimpeded discretion to intervene and if circumstance so require, to vary any unjust Subordinate Court order in respect of the amount or conditions set out in any bail bond. Hari Ram Seghal v PP The powers of the courts in England to intervene and make rules not provided in the criminal [1981] MLJ 165 procedure are inherent and are exercisable to correct any injustice. The power to make rules such as the Judges' Rules, notice of additional evidence and power to expunge words from records are some examples of this inherent power. By virtue of section 5 of the Criminal Procedure Code, the use of this power could be extended to this country provided it does not conflict with our statutory provisions. Karpal Singh v PP [1991] -Our considered opinion is that the English doctrine of inherent jurisdiction is hardly applicable 2 MLJ 544 in the subordinate courts but the High Court may invoke such prerogative powers in rare instances where it is right to do justice to the accused. There is hardly any room for transplantation of any English practice or other systems of law in the magistrate's court under the Code. -In matters like criminal law of a purely domestic nature, our view is that the court will only exercise its inherent powers when there is miscarriage of justice. The court must be careful that the decision is not in conflict with the intention of the legislature as indicated in statutory powers. The inherent power apparently cannot be invoked to override an express provision of law or when there is another remedy available. Where the legislature has provided a particular mode of action or has vested an authority with powers to act in a particular manner and has prescribed the conditions limiting the scope of such action, the court cannot act outside those powers and conditions. S.5 Applied EL Sanassi [1970] 2 MLJ 198

Mohamed bin Jamal v PP [1964] MLJ 254 Hari Ram Seghal v PP [1981] 1 MLJ 165

Dato’ Mokhtar Hashim v PP [1983] CLJ (Rep) 101

The accused in this country was given a right to make an unsworn statement from the dock because it is derived from the Criminal Evidence Act 1898 of England as read with s.5 of the SS CPC The appellate courts of which this court is the successor have always adopted the same attitude as has been adopted by the English Court of Criminal Appeal to applications to call additional evidence. English cases were referred. The powers of the courts in England to intervene and make rules not provided in the criminal procedure are inherent and are exercisable to correct any injustice. The power to make rules such as the Judges' Rules, notice of additional evidence and power to expunge words from records are some examples of this inherent power. By virtue of section 5 of the Criminal Procedure Code, the use of this power could be extended to this country provided it does not conflict with our statutory provisions. -All that an accused person need do is to cast a reasonable doubt and that he does not in putting forward an alibi as an answer to a charge assume any burden of proving that answer, and we have been referred to English cases to this effect in support of this submission. -The position here however would appear to be different in view of the provisions of s. 402A of the Criminal Procedure Codewith regard to notice to be given of a defence of alibi which was added by way of amendment to the Code with effect from 10 January 1976. -The concluding words of s. 402A(2) 'for the purpose of establishing his alibi' are significant and

Re Kah Wai Video (Ipoh) Sdn Bhd [1987] 2 MLJ 459 Ong Lai Kim v PP [1991] 3 MLJ 111 Hasibullah bin Ghazali v PP

Mohd

Not applied EL Tan Boon Hock v PP [1979] 1 MLJ 236 FC

Husdi v PP [1980] 2 MLJ 80 FC Karpal Singh v PP [1991] 2 MLJ 544 SC

Dato Seri Anwar bin Ibrahim v PP [2010] 2 MLJ 312

Mohd Rafizi Ramli v PP [2014] 4 CLJ 1

would seemingly put a probative burden on an accused. -The position in England would appear to turn on the specific provisions of s. 11 of the Criminal Justice Act 1967 and we would refer in particular to the provisions of sub-section (1) and the definition of 'evidence in support of an alibi' in sub-section (8) thereof. Nowhere in the Criminal Procedure Code or elsewhere is there any provision enabling the issuing Magistrate to make the order for return of the unscheduled articles. -Court found support in English cases. In this case, it is correct to follow English case which provides identification parade by using one way mirror to identify accused person since our CPC is silent on the manner to identify accused person under custody of police and no local case deal with this matter. -There is high authority for the proposition that the 'voluntariness' test has been expanded to include within its ambit, statements which are rendered inadmissible by reason of the fact that they were obtained under oppressive circumstances. It is true that the provisions of proviso (a) to s 37A(1) of the Act which repeat s 24 of the Evidence Act 1950, do not provide for this as a ground for excluding a confession by an accused person, but the authority to which we shall be referring in a moment, appears to have incorporated the common law. -In Dato Mokhtar bin Hashim v PP 9, a decision of the Federal Court, the court found that the trial judge was wrong in failing to exclude the statement made by the accused because it was the result of prolonged periods of questioning ranging into the small hours of the morning which 'appeared to be suggestive of oppression.' In so holding, the court applied the definition of oppression propounded by Sach J in R v Priestley 10 as 'something which tends to sap and has sapped that free will which must exist before a confession is voluntary', which was adopted in R v Prager.

The High Court has jurisdiction to try all offences including offences under the Penal Code committed within its local jurisdiction. See section 22 of the Courts of Judicature Act, 1964. It not only has appellate criminal jurisdiction but also revisionary power over all subordinate courts. See sections 26 and 30 of the said Act. Section 4 of the Criminal Procedure Code says nothing in the Code shall be construed as derogating from the powers or jurisdiction of the High Court. In matters of criminal procedure, section 5 of the Code lays down that English law shall apply where no provision is made by the Code or by any other law. -Without calling in aid English law the High Court certainly has power to do all those acts which are the subject of the reference. S.5 provides that where there is a lacuna in our law relating to criminal procedure, the court should apply English law, in so far as the same shall not conflict or be inconsistent with the Code and can be made auxiliary thereto. The CPC came into force in 1976 is applicable to the whole of Malaysia, amending and codifying the previous separate legislations. The Code, as its name suggests was intended to be an exhaustive pronouncement of the criminal procedure. Section 5 of the Code is indicative of the principles to be applied by local courts. This section provides for English law relating to criminal procedure to be applied when there does not exist any special provision on the matter either in the Code or any other existing law. English law is applicable insofar as it does not 'conflict or be inconsistent with this Code and can be made auxiliary thereto.' The pronouncement and effect of the Code leave no lacuna under normal circumstances. -The right to a fair trial is of course a universal principle. It is inviolable. It has since been fully developed in the common law practice including here, in Malaysia. -S.51A strengthens the guarantee of a fair trial in providing the adequate facilities as purported in the general remarks document of the Human Rights Committee that was read to us. Section 51A of the CPC has, in our opinion, made the battlefield move level, to preserve the 'equality of arms principle', ensure the fairness of a trial and ultimately uphold the very integrity of the courts in its administration of criminal justice. This should also be considered in the light of our criminal justice system where the burden of proof lies throughout on the prosecution, which, together with the common law principle of presumption of innocence, safeguard that fairness. It is common ground that no special provision has been made under the CPC or any other laws in Malaysia that provide for the setting aside or quashing of a criminal charge on the basis of the above complaints by the appellant. It is therefore acceptable that the said application by the appellant at the High Court was correctly premised on the provisions of s. 5 of the CPC and the inherent jurisdiction of the High Court. However, in such exercise of its inherent power the court must be slow in doing so and ensure that such exercise do not conflict with any statutory provisions.

Chapter 3: Arrest Art 5 of FC: No person shall be deprived of his personal liberty save in accordance with the law. -Definition Roshan Beevi v Joint -it is clear that the word 'arrest', when used in its ordinary and natural sense, means the Secretary, Government apprehension or restraint or the deprivation of one's personal liberty. of Tamil Nadu -When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of 1. holding or detaining him to answer a criminal charge or 2. of preventing the commission of a criminal offence. Essential elements to constitute an arrest in the above sense are that 1. there must be an intent to arrest under the authority, 2. accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested. Manner S.15(1): touching, confining, submission (word/action) Roshan Beevi v Joint The method and the execution of arrest of a person intended to be arrested should be performed Secretary, only in the manner prescribed in the statute and the other methods of performance are forbidden; Government of Tamil otherwise the whole provision of S. 46, Cr.P.C. would be rendered nugatory and functionless. If the Nadu method of arrest is not performed in the manner known to law and as prescribed under Section 46, Cr.P.C., but by the mere utterance of words, making of gestures, flickering of eyes, nodding of the head, etc., as ruled in Kaiser Otmar's case, 1981 Mad LW (Cri) 158 : (1981 Cri LJ NOC 208), we are of the firm view that the modes of arrest prescribed in that ruling are not only contrary to S.46, Cri.P.C., but will also render the section non-existent or otiose, and such a procedure cannot be adopted to effect a valid arrest. Custody =/= arrest Alderson v Booth

Shaaban v Chong Fook Kam

Parker CJ: There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying "I arrest you" without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear…that an arrest is constituted when any form of words is used which in the circumstances of the case were calculated to bring to the defendant's notice, and did bring to the defendant's notice, that he was under compulsion and thereafter he submitted to that compulsion.” Lord Devlin in Privy Council - consider the elements constitute a valid arrest and held that an arrest occurs when: -when a police officer states in terms that he is arresting, or -when he uses force to refrain the individual concerned, or -when he makes it clear that he will, if necessary, use force to prevent the individual from going where he may want to go.(from police’s perspective) -it does not occur when he stops an individual to make enquiries. (because there is no submission)

What amount to custody Yong Moi Sin v Kerajaan Malaysia Sambu v R [1947] MLJ 16 Tan Shu En v PP [1948} MLJ 196 Paramhansa Jadab vs The State

Harbans Singh Sardar Lehna Singh v State Lee Cher Joo @ Lee Sujan

A person may be in custody without having been arrested. A person is in custody when he is in a state of being guarded and watched to prevent his escape. The test is - could the person concerned have walked away if he had wished to do so. Police custody … means some form of restraint by the police on the movement of the person concerned, and is not restricted to custody after formal arrest. Police custody would commence from the moment when his movements are restricted and he is kept in some sort of direct or indirect police surveillance. -Custody not amounting to arrest -voluntarily accompanying a police officer to a certain place When a person drives away accompanied by several officers in his car voluntarily came to the police station

v Mohd Othman

Sharif

bin

-P had gone to the police station in response to the request of the police officer. They were then told to wait for 3 hours in which they were subsequently arrested and detained at the lock-up of police station. Held: there was no arrest for that 3 hours as they were asked to wait and if they were under arrest there was no necessity for the officers to tell them to do so. The willingness to wait is not equivalent to being put under arrest and no evidence prevented the P from leaving at any point of time.

Custody = arrest = constructive arrest. PP v Tan Seow Chuan The accused was under arrest as soon as PW 1 showed his authority card to the accused. Another police officer was asked to guard the accused so that the accused could not go anywhere else. If the accused had run away, he would arrest him back. PP v Rosyatimah bte A person is under arrest already if he is in a state of being watched/guarded to prevent his Neza escape, or from the circumstances it can be implied that his personal liberty has been restrained. PP v Kang Ho Soh Acting on information, the police set up a road block and stopped the accused. When being asked by the police to come out of the car to go to...