Kok wah kuan case - case that will be useful for a better understanding on statutory interpretation, PDF

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case that will be useful for a better understanding on statutory interpretation, probably will be useful for tutorial question as well...

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[2007]

6

CLJ

PP

v.

Kok

A

Wah

Kuan

341

PP

v.

KOK WAH KUAN B

FEDERAL COURT, PUTRAJAYA AHMAD FAIRUZ CJ ABDUL HAMID MOHAMAD PCA ALAUDDIN MOHD SHERIFF CJ (MALAYA) RICHARD MALANJUM CJ (SABAH & SARAWAK)

C

ZAKI TUN AZMI FCJ [CRIMINAL APPEAL NO: 05-46-2007 (W)] 23 OCTOBER 2007 CONSTITUTIONAL

D

LAW:

Federal

Constitution

-

Separation

of

powers, doctrine of - Whether integral part of Constitution - Section 97(2) of Child Act 2001 - Child convict to be held at pleasure of Yang diPertuan Agong - Whether consigning judicial power to the Executive Whether

contravening

doctrine

of

sep aration

of

p owers

-

Whether

unconstitutional - Federal Constitution, arts. 39, 40, 121(1) - Child Act E

2001, s. 97(2) - Penal Code, s. 302

CONSTITUTIONAL LAW: Federal Constitution - Article 121(1), amendment

to

-

Effect

and

scope

-

Whether

article

sole

repository

of

judicial role of courts - Jurisdiction and powers of courts - Whether only F

as conferred by federal law - Whether courts servile agents of federal law - Federal Constitution, arts. 39, 40, 121(1)

CRIMINAL

PROCEDURE: Sentence - Murder - Child

convict

-

Alternative sentence under Child Act 2001 - Child ordered to be held in custody during pleasure of Yang di-Pertuan Agong - Whether order lawful G

- Child Act 2001, s. 97(2) - Penal Code, s. 302

WORDS & PHRASES: “The High Courts and inferior courts shall

H

have

jurisdiction and

law”

-

Federal

powers

as

Constitution,

may

art.

be

conferred

121(1)

-

by

or under federal

Meaning

and

import

-

Whether courts reduced to servile agents of Acts of Parliament

This was an appeal by the Public Prosecutor against the decision of

th e

learned I

old

C o ur t High

of

respondent

nonetheless during

the

Ap p e al

Court for

wrong

r uling

judge

was

murder in

pleasure

under

ordering

of

the

th at

correct

the

Yang

s.

no tw ith s tanding in

convicting

302

child

Penal

convict

di-Pertuan

s. 97(2) of the Child Act 2001 (‘the Act’).

th at

the

Code, to

Agong

be

th e

12-year he

was

detained

pursuant

to

Current

342

Law

Journal

[2007]

6

CLJ

It was the view of the Court of Appeal, in so faulting the learned judge,

that

Federal was

s.

97(2)

of

Constitution,

unconstitutional

power

to

–

determine

respondent

to

the

for

the

the

Act,

including

having

measure

Executive

proper and

121(1)

consigned

the

Court’s

of sentence

of

retorted otherwise, whereof the on

account

of

the

the

to

be

contravened

Prosecutor

court,

in

reading

40

and

housed

a

39,

separation

apex

powers

upon

arts.

of

the

therein, judicial

served by the

the

doctrine

Constitution.

The

of

B

Public

learned justices

constitutional

A

of the

deliberations

undertaken by the Court of Appeal, deemed it wise and proper to re-visit their

the

relevant

constitutional

provisions,

opinion thereon and answering

learned

High

Court

judge

was

the

before

pronouncing

question of whether

wrong

in

making

the

C

the

order

aforesaid, or conversely whether the Court of Appeal was justified in releasing the

respondent forthwith

from custody. D

Held (allowing appeal and restoring order of High Court) Per

Abdul

Hamid

Mohamad

PCA

(delivering the

judgment

of the court):

(1)

Following the amendment to art. 121(1) of the Constitution by

Ac t

A704,

th e r e

w as

no

lo nge r

a

s p e c ific

p r o vis io n

E

declaring that the “judicial power of the Federation”, as the term was the

two

understood High

federal

law

if

powers

of

the

such

we

on

powers”

of

to

is

the

know

are

amendment,

prompted about

Courts. vested

federal

the

This

to

This

High

what

interpretation amendment.

want

two

“judicial

depend

prior

Courts.

law

us the

to

short,

in

the

to

two

provides,

“judicial

the

difference

power” and

vested at

jurisdiction

In

term

is

look

and

what

extent

courts

would

not

as

the

in

the

on

F

the

prior

to

the

effect

of

the

G

amendment. Thus, to say that the amendment has no effect does (2)

not

make

sense. (para 11)

In the instant appeal, even the Court of Appeal’s does

not,

in d e e d

Constitution

s.

97

c an n o t , is

show

inconsistent

w h ic h with.

judgment

p r o vis io n Instead,

of

the

the

court

H

held that that section violated the doctrine of the separation of

powers,

which,

in

its

view,

was

an

integral

part

of

the

Constitution. (para 13) (3)

The

doctrine

of separation of powers

is

a political doctrine

under which the legislative, executive and judicial branches of government However,

are

kept

Malaysia

distinct, has

its

to

prevent

own

abuse

model.

of

power.

Whilst

our

I

[2007]

A

6

CLJ

PP

Constitution

does

v.

Kok

have

Wah

the

Kuan

343

features

of

the

separation

of

powers, it also contains features which do not strictly comply with

the

doctrine.

therefore, (paras

To

depends

14 &

on

what the

extent

the

provisions

doctrine

of

the

applies,

Constitution.

17)

B

(3a)

In determining the constitutionality or otherwise of a statute under

our

Constitution,

Constitution by

some

not

C

a

that

thinkers.

provision

provision ground

it

is

matters, not The

of

a

doctrine

the

the

of

separation

Malaysian

of

the

Constitution

that

it

contravenes

provision

political theory

of

be

struck

d o c t r in e .

the

powers

is

Thus,

a

Constitution.

cannot the

of

expounded

out

on

the

S imila r ly ,

no

provision of the law may be struck out as unconstitutional if it

is

not

may be

D

(4)

with

the the

Constitution, even

doctrine. (paras

though

17 &

it

18)

Federal law provides that the sentence of death shall not be pronounced

or

recorded

at

of

the

the

limit E

inconsistent

inconsistent with

time

of judicial power

further

provides

against

commission of the

a

person

of

the

court

that, instead, the

who

was

offence.

a

That

imposed by the

child shall be

child is

the

law. It

ordered to

be detained in a prison during the pleasure of the Yang diPertuan

Agong

or

the

Ruler

or

the

Yang

di-Pertua Negeri,

depending on where the offence was committed. That is the s e nt e nc ing F

power

g ive n

by

fe de r al

law

to

the

c o ur t

as

provided by the Constitution. (para 22) Per Richard Malanjum CJ (Sabah & Sarawak) (concurring):

(1) G

On a plain reading of subsection (2) of s. 97, it is clear that it empowers the court, after convicting a person who was a child at the time of the commission of an offence punishable with death, to make an alternative order instead of imposing a sentence of death. The alternative power to make such an order

H

is

no

sentence different Agong

less

or

form,

or

depending

to on

than

the

p u n is h me n t namely

the

to

Ruler

where

the

power on the

or

to

a

of

care the

offence

the

c h ild of

the

Yang

was

court

to

c o n v ic t Yang

impose

albeit di

a a

Pertuan

di-Pertua

committed.

in

Negeri

There

is

nothing unconstitutional about this scheme. (paras 33 & 34) I

Current

344

(2)

I

am

unable

to

Law

accede

to

Journal

the

[2007]

proposition

that

6

CLJ

with

the

A

amendment of art. 121(1) of the Federal Constitution, courts in Malaysia can only function in accordance with what have been

assigned

proposition

to

is

them

by

the

contrary

to

federal the

law.

Accepting

democratic

such

system

of

government wherein the courts form the third branch of the

B

government and function to ensure that there is “check and balance” in the system including to dispense justice according to law. (para 37)

(3)

The

amendment

which

states

that

“the

High

Courts

and

C

inferior courts shall have jurisdiction and powers as may be conferred by or

under

federal law” should by no means

be

read to mean that the doctrines of separation of powers and independence features h ave

of

no w

of

our

the

b e c o me

Parliament

judiciary

Federal

and

to

are

now

Constitution

s e r vile

age nts

perform

no

more

or

that

–

of

th e

mechanically

the the

fe de r al

any

basic courts

Ac ts

of

command

or

D

bidding of a federal law. (para 38)

(4)

The courts, especially the superior courts, are a separate and independent pillar of the Federal Constitution and not mere

E

agents of the federal legislature. In the performance of their function

they

perform

a

myriad

of

roles

and

interpret

and

enforce a myriad of laws. Article 121(1) is not, and cannot, be the whole and sole repository of the judicial role in this country. It cannot be so considering – that the amendment

F

seeks to limit the jurisdiction and powers of the High Courts and the inferior courts to whatever “may be conferred by or under

federal law”, that

courts

cannot be

be

servants

of

C o ns titutio n

the

is

the

jurisdiction

confined to law

as

s up e r io r

a to

and

federal law whole,

that

fe de r al

as

powers their

since

law

th e

of

role

the

the

is

to

G

Federal

ame ndme nt

cannot be said to have taken away the powers of the courts to

examine

should

issues

not

be

of

read

constitutionality, to

destroy

the

that

the

courts’

amendment

common

law

H

powers, that the amendment cannot prevent the courts from interpreting

the

constitutional literal,

and

c r e at ive (para 39)

th at

and

law

creatively,

provisions th e

e x t e nds

a

role to

judge of

a

dir e c t

that

cannot

judge or

is

in

interpreting

afford

to

be

cons titutive

indir e c t

law

too and

making .

I

[2007]

A

6

CLJ

PP

v.

Kok

Wah

Kuan

345

Bahasa Malaysia Translation Of Headnotes

Ini

a d a la h

rayuan

o le h

P e n d a kw a

Raya

terhadap

ke p u t u s a n

Mahkamah Rayuan yang memutuskan bahawa walaupun yang arif hakim B

betul

tahun, atas

dalam

mensabitkan

kesalahan

bunuh

responden,

di bawah

beliau khilaf apabila memerintahkan pesalah ditah an

me nurut

p e rke nan

Yang

yang

berumur

s. 302 Kanun

12

Keseksaan,

kanak-kanak tersebut

di-P e rtuan

Agong

di

b aw ah

s. 97(2) Akta Kanak-Kanak 2001 (‘Akta’). Adalah menjadi pandangan Mahkamah Rayuan, dalam menyalahkan C

yang arif hakim, bahawa s. 97(2) Akta adalah tidak berperlembagaan atas

pembacaan wajar

fasal

39,

40

dan

Perlembagaan Persekutuan, termasuk fasal-

121(1)nya

–

kerana

telah

menyerahkan

kuasa

kehakiman Mahkamah untuk menentukan had hukuman yang perlu dijalani D

oleh

menyanggahi

responden doktrin

Perl...