CPC 1ST CASE PREP - Case Presentation PDF

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Prepared by: F 15 - Qussiynur Yakin binti Ainal Yakin (A164453) Muslim Ab Karim & Satu Lagi lwn. PP [2017] 1 LNS 1502 Mahkamah Tinggi Malaya Temerloh Judicial Commisioner Hassan Abdul Ghani A. Summary Facts This is a criminal revision case where at the Session Court both of the applicants have been accused under Section 14 Anti-trafficking in Persons And Anti-smuggling Of Migrants Act 2007. Both Applicants were charged separately with five charges of an offence of trafficking in children for the purpose of exploitation of activities that violates section 2 of the Children And Young Persons (Employment) Act 1966 [Act 350] commits an offence under section 14 of ATIPSOM Act 2007 and sentenced under the same section read together with section 34 of the Penal Code. The Session Court judge did not offer any guarantee to both applicants temporarily awaiting trial date. The applicants' counsel has filed a criminal revision application under Section 323 (1) of the Criminal Procedure Code on the grounds that the Sessions Court Judge has erred and misdirected in his decision and applied from the court to grant bail to both applicants. B. Issues on Criminal Procedure Whether The Session Court judge erred in not offering bail under Section 388 of CPC to the applicant. C. Arguments by Applicant’s Counsel The applicant counsel argued that the Session Court Judge under his discretion may grant bail under exception of Section 388(1) of CPC to the applicants’ because she is a woman. D. Arguments by Respondent During the Session Court proceeding, Respondent applied to the court to not offer the bail to the applicants without giving any justification. During that time, the applicants’ are not represented with any counsel and applied to the Court to issue bail against them. Although the Respondent did not give any reason why applicants should not be granted temporary bail awaiting the trial date, the Sessions Court Judge ruled at its discretion, no guarantee is allowed on the Petitioner on the grounds of the nature and severity of the offence.

E. Decision & Reason of Judgment It was held that Session Court Judge must exercise their discretionary power righteously and consider the relevant factor to grant bail. In the case of PP v. Wee Swee Siang [1948] MLJ 114 the court stated the factors are as follows:

i. ii. iii. iv. v. vi. vii. viii. ix.

whether there was or was not reasonable grounds for believing the accused guilty of the offence; the nature and gravity of the offence charged; the severity and degree of punishment that might follow; the danger of the accused absconding if released on bail; his character, means and standing; the danger of the offence being continued or repeated; the danger of witnesses being tampered with; opportunity to the accused to prepare his defence; and the long period of detention of the accused and probability of further period of delay

The court also refer to the case of PP v. Dato’ Balwant Singh [2002] 4 CLJ 155 where ‘The list is not exhaustive….In my opinion the health of the accused is also a factor that can be considered’. Moreover, in PP v. Wee Swee Siang [supra] it was held that the primary consideration is to ensure the presence of the accused to stand his trial and bail should not be refused lightly. A man is innocent until found guilty and failing strong grounds he should be granted bail. Applying the authorities in the present case where the applicant was accused with an offence that will be punished with death or life imprisonment. Therefore, based on the case of Dato ’Balwant Singh (supra), in that case involving such non -bailable offence, the court has the discretion to offer a bail to the applicant. It was held that the Session Court judge seems failed to consider that the second applicant is a woman should be under exclusion of Section 388 (1) CPC though there may be a reasonable excuse if she does such a thing. Sessions Court judges have also erred in having failed to examine the charge paper and failed to take that into account the age of the 1st applicant at the time of the incident was 69 years and the 2nd applicant is 54 years old. Based on the applicant’s age, the probability of the appellant to flee is a mere rhetoric. Hence, the court set aside the Session Court Judge’s order and allowed the criminal revision to be done. Both of the applicants were granted bail for an amount of RM2,000.00....