Lecture 1 Introduction to Criminal Procedure I PDF

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Lecture 1 Introduction to Criminal Procedure IAn Overview Relevant statutes governing the administration of criminal justice – Criminal Procedure Code (Act 593), herein referred as CPC. CPC is applied throughout Malaysia in since 10 January 1976.Criminal Procedure Code (Act 593) (Revised 1999) Main ...

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Lecture 1 Introduction to Criminal Procedure I An Overview Relevant statutes governing the administration of criminal justice – Criminal Procedure Code (Act 593) , herein referred as CPC. CPC is applied throughout Malaysia in since 10 January 1976. Criminal Procedure Code (Act 593) (Revised 1999) Main statute governing criminal procedure in Malaysia Lim Hung Wang [2011] 9 MLJ 752, HC “In our country, criminal procedure law is codified in the ” Scope of CPC s3 Trial of offences under Penal Code and other laws. All offences under the Penal Code shall be inquired into and tried according to the provisions hereinafter contained, and all offences under any other law shall be inquired into and tried according to the same provisions: subject however to any written law for the time being in force regulating the manner or place of inquiring into or trying such offences.

Generally: CPC provides for criminal procedure governing trials and inquiries into offences. Exception: however, will be superseded if there are more specific provisions providing to the contrary  Generale specialibus non derogant Example: s416 DDA 1952 – drug offences are unbailable notwithstanding the provisions of the CPC. Essential (Security Cases) Amendment Regulations 1975 i.e. ESCAR 1975 ▪

PP v Chew Siew Luan [1982] 2 MLJ 119, FC A pregnant woman was charged for drug trafficking under the DDA 1952 (Act 234) which carried a punishment of death or imprisonment for life. Sessions: Granted her bail pending the hearing of the case relying on the proviso to s388(1) CPC. HC: s41(B)(1) & (2) DDA 1952, does not override the proviso to s388(1) CPC. FC: The provisions regulating the granting of bail under the DDA must be construed in the context of that Act and not in that of the CPC and to that extent the general provisions of the CPC must ex necessitate yield to the specific provisions of s41B DDA in that regard.

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PP v Mohd Amin b. Mohd Razak & Ors [2000] 4 MLJ 679, HC 29 accused persons were charged for an offence of waging a war against the YDPA punishable under s121 PC. The accused persons were being tried under ESCAR 1975, which was objected by counsel for the first accused on the gourds that, inter alia, Regulation 26 ESCAR only provides for appeals from the HC to SC which does not exist, as there is now a HC, CA and FC. Appeal from HC to FC is an irregularity and thus ESCAR 1975 is null and void. Held: The right of appeal is dependent on the legal provision available in a specific statute . Thus if a statute does not provide for an appeal to the newly created CA like ESCAR, then an appeal has to lie only to the FC. A provision of law in the form of Reg 26(1) ESCAR providing for an appeal straight to the FC thereby sidestepping the CA is not illegal. The validity of Reg 26(1) ESCAR being made pursuant to the Emergency (Essential Powers) Act 1979 is reinforced by Art 150(6). The legislative had enacted the Emergency (Essential Powers) Act 1979 (Act 216) under Art 150(5) Constitution to supersede and validate the Emergency (Essential Powers) Ordinance 1969. Hence, ESCAR must be deemed to be valid.

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Reference in Event of Lacuna In the event there is a lacuna or some matter which the CPC or any other law for the time being in force fails to specially provide, resort can be made to criminal procedures laws currently being in force in England. Conditions: Must not conflict with the CPC or any existing laws currently in force in Malaysia. s5 Laws of England, when applicable. As regards matters of criminal procedure for which no special provision has been made by this Code or by any other law for the time being in force the law relating to criminal procedure for the time being in force in England shall be applied so far as the same shall not conflict or be inconsistent with this Code and can be made auxiliary thereto.

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PP v Sanassi [1970] 2 MLJ 198 At the close of PP case accused was asked to enter upon his defence and he elected to make an unsworn statement from the dock. In the course of making that statement he referred to various statements which he said he made to the police investigating officer in the course of his investigations. Issues: Whether accused could make such statement from the dock and whether a statement, which would otherwise be inadmissible, could form part of the statement if the accused elected to make such a statement from the dock. Held: Accused has a right to make an unsworn statement from the dock but such a statement does not constitute evidence and the accused making such a statement cannot be a witness. Those parts of the statement which relate to what the accused told the investigation officer in the course of investigations should be deleted from the statement.

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Husdi v PP [1980] 2 MLJ 80, FC Questions referred to the FC: (1) Whether a person charged with a criminal offence or offences triable summarily before a subordinate court is entitled in law at any, and if so, at what stage after his arrest to obtain copies of statements of witnesses recorded by the police in the course of investigations under s112 CPC. (2) Whether a person charged with a criminal offence or offences is entitled to obtain a copy of a statement made by him to a police officer under the provisions of s112 CPC. It was argued that the accused is entitled to a copy of the statement of a witness when it is sought to impeach the credit of the witness. Held: When a prosecution witness is being cross-examined and the defence seeks to impeach his credit, the court should at the request of the defence refer to his police statement, and may then, if the court thinks it expedient in the interest of justice, direct the defence to be supplied with a copy. The court had made reference with the old CPC: If such an application had been made when the old s113(ii) CPC ("the Code") was in force, then, the court, if it thought it "expedient in the interest of justice", might direct counsel for the accused to be furnished with a copy.

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Approach In Interpret Provisions in CPC s2(3) All words and expressions used herein and defined in the Penal Code[Act 574] or the Police Act 1967[Act 344], and not herein before defined shall be deemed to have the meanings attributed to them by that Code or that Act, as the case may be.

Whenever want to interpret a provision in the CPC must first look at the CPC for any definition given before referring to other statutes or case laws for definitions. ▪

Abdul Ghani b. Jusoh & Anor v PP [1981] 1 MLJ 25, FC APs had been convicted of offences under s304 PC. The case against AP relied largely on the admissibility of the cautioned statements made by them. The statements were unsigned and the statement of AP1 was made to a Probationary Inspector. Trial judge admitted the statements in evidence. APs appealed. Held: As the statements were not signed or thumb printed, and since no adequate reason was advanced for the failure to obtain the signature or thumbprint or the appellants, the statements were inadmissible in evidence. The statement recorded by the Probationary Inspector was not a statement recorded in accordance with s113 CPC and was therefore inadmissible. Appeals allowed. Wan Sulaimen FJ: 1. Cautioned statement under s113 CPC was at the same time the statement recorded under s112 CPC. 2. The writing requirement under s112(1) CPC is mandatory. But the signature or thumb print requirement in not as the phrase ‘whenever possible’ in used s112(5) CPC, hence not fatal as to admissibility.

Recent Developments & Amendments Proposed CPC (Amendments) Act 2004 = still in Bill form: - Revamp the existing investigative procedures - Introduction of formal provisions for taking the evidence. - Tidy up some of the existing provisions - Enhance the operation & mgmt of the RMP Abolition: - Preliminary inquiry - Jury - Assessors trial procedures - Revised of CPC – Act 593 instead of FMS Cap. 6

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Courts (a) Hierarchy See: Art 121 FC, CJA 1964, SCA 1948, Child Act 2001  s11 – s41 (b) Jurisdiction i) Trial – Directed to an examination of the offences or offenders which or who can be tried by the particular court. ii) Sentencing – Examination begs an answer to a different query, namely, what are the types of punishment or sentence and how much each punishment or sentence can be imposed by the particular court upon finding the offender guilty of an offence tried before it. iii) Appellate and revisionary – Theses 2 types of punishment are paternal in nature and are usually exercised by a superior court, especially the HC in its supervisory capacity iv) Local – Predicated upon the dictate that it is only the court which is situated in the local area where the offence was committed that had jurisdiction to try or inquire into the matter (Note there are many exceptions to this rule) v) Extra-territorial - Traceable to principles of international law whereby criminal jurisdiction is usually exercised by a sovereign over crimes committed in its own territory. - Therefore, where the offence is wholly committed aboard, unless there is specific legislation conferring extraterritorial jurisdiction in our courts over such an offence or offender, he would not be triable by the local courts. ▪ ▪ ▪ ▪ ▪

Cheong Ah Cheow v PP [1985] 2 MLJ 257 PP v Tengku Hitam [1962] MLJ 414 Dunlop Malaysia Industries Bhd v PP [1985] 1 MLJ 314 Lee Hong Kooi v PP [1993] 1 MLJ 69 Nadarajan v PP [2000] 4 MLJ 373

Local Jurisdiction v Extra-territorial Jurisdiction Relevant provisions: s121-127, s417 CPC General Rule: Local Jurisdiction s121 Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. s2(1) “local limits of the jurisdiction” of the Court of a Magistrate means the limits of the ordinary administrative district in which the Court house is situated;

If the offence was committed in that area, the court in that area has jurisdiction to hear the case. ▪

Tengku Abdul Muiz Shah & Ors. v PP [1983] 1 MLJ 422 There was an application for transfer of a criminal case pending in JB magistrate court to the magistrate court in KL. Application made to HC in KL. Issue: Whether HC KL has local jurisdiction to hear the application. Held: The HC exercise their local jurisdiction for their respective states territory. Since the offence was alleged to have been committed at JB within the territorial jurisdiction of the JB magistrate’s court, and the HC of JB had the local jurisdiction for the state of Johor, it follows that the JB court is the court of competent jurisdiction to hear this application.

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Lt Kdr Balakrishnan v Menteri Pertahanan Malaysia [1994] 2 AMR 20, 1045, HC Held: Because art 121 provides that there shall be only 2 HC in Malaysia that is the HC Malaya and HC Sabah and Sarawak. Therefore, irrespective of where the HC of Malaya sits, it is still sitting as the HC Malaya. Referring to s3 CJA which defines ‘local jurisdiction’, the court said that the local jurisdiction of the HC Malaya covers the whole of Peninsular Malaysia. The definition of local jurisdiction of the HC Malay should not be interpreted as creating individual local jurisdiction for the HC of Malaya,

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Exception to local jurisdiction  CPC s122 – s127  Extra-territorial jurisdiction Power of court to transfer cases - Essential (Security Cases) Regulations 1975 (ESCAR) – regulation 8 - Extra Territorial Offences Act 1976 -

s417, s418A COC ▪ Oh Keng Seng v PP [1974] 2 MLJ 48 Application was made by accuse to have his case transferred from Seremban to KL Held: s417 CPC should be construed as an exception to the ordinary rule on jurisdiction and venue of hearing. The power of transfer contained therein should only be exercised if it appears to the court that not to do so may result in an unfair or un-impartial trial or otherwise appears to the court expedient in the interests of justice. ▪

PP v Nai Prasit [1961] MLJ 62 The second marriage took place in Australia. Issue: Whether court has jurisdiction to try a case of bigamy? Held: The session court in the Federation had no jurisdiction to try the offence.

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PP v Rajappan [1985] 1 MLJ 231, HC; [1986] 1 MLJ 152, SC PP applied to HC KL to determine whether the Magistrate Court in Kelang had the jurisdiction to hear the offence of bigamy committed by a Malaysian in Kelang. The first marriage was solemnised in Malaysia while the second marriage purported to be bigamous was solemnised in India. SC: The offence of bigamy was territorial and that the local courts did not possess jurisdiction if the 2 nd marriage took place in another country.

Both Nai Prasit & Rajappan followed in ▪ PP v Pong Tek Yin [1990] 3 MLJ 219, Singapore HC Held: A bigamous marriage taking place aboard, in this case in Malaysia, is not an offence punishable under s494 Singapore Penal Code. ▪

DPP v Doot [1973] 1 All ER 940 5 RP were charged and found guilty of the offence of conspiracy. There were all American citizens and parties to an agreement made in Belgium to import Cannabis resin into England, with the aim of exporting again to America. They were detected, charged and found guilty. RP appealed. CA: Conviction quashed as the court of England do not possess the jurisdiction to try the offence because the basis of the offence was the agreement and once that agreement was sealed, the offence was completed. Hence, the offence was committed out of England. HL: An agreement made outside the jurisdiction is conspiracy which could be tried in England if that agreement was subsequently enforced, where wholly or partly in England. Further, although the offence of conspiracy was committed once the agreement was made, the agreement was still effective until terminated by its full enforcement or eventually put out of use.

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PP v Yong Nam Seng & Anor [1964] MLJ 85 Held: The signing of the declaration form in Singapore and its presentation at Johor Bahru was continuous act culminating in the act committed within the jurisdiction of the court at Johor Bahru.

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Lee SzuYin v PP [1962] MLJ 49 Accused person merely valued the goods in Singapore and was not responsible for preparation of the declaration for customs purpose in Johor. Held: The Magistrate’s Court at Johor Bahru had no jurisdiction to try AP because the actus reus took place in Singapore. Ong J: The distinction to be drawn between those cases and the instant one is that in the former the portion of the act which was done abroad formed one continuous act with its culmination in the criminal act committed within the jurisdiction, whereas here the making of the undervaluation and declaration were entirely independent acts done by a third party of his own volition.

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PP v Loh Ah Hoo [1974] 2 MLJ 216 Held: Accused had done the preparatory act in Singapore and those acts culminated within the jurisdiction, i.e. at Johor Bahru, when the goods reach and the declaration for which the accuse was responsible reached the customs. Syed Othman J: If a person's criminal act or responsibility for the criminal act runs from outside jurisdiction to within jurisdiction then he is liable.

Note: The difference between Yong Nam Seng (declaration prepared and singed in Singapore) & Loh Ah Hoo (declaration prepared in Singapore), with Lee SzuYin. Lee Szu Yin was the co-accused to AP, who was charged in the Malaysian courts for preparing a false declaration in Singapore. The position of AP was similar to Yong Nam Seng & Loh Ah Hoo. Lee Szu Yin was the man in charged of a limited company carrying on business sin Singapore, who merely issued invoices for the said goods and had nothing to do with the preparation or signing of the customs declaration. Other recent cases: ▪ Abdul Ghani bin Ali v PP (and another appeal) [2001] 4 AMR 4317, FC ▪ PP v Mohd Amin bin Mohd Razali & Ors [2003] 4 MLJ 129

Contravention of Rule s417 CPC – authorised the transfer of cases ▪ Wong Pang Fing v PP [1997] 2 MLJ 151 AP was convicted of an offence in the Magistrate court tin Kuching although the offence was committed in the district of Bau, Sarawak. AP appealed on the ground that the trial magistrate had no jurisdiction to hear cases as the offence was committed outside his jurisdiction. Held: Appeal allowed, because the magistrate at Kuching did not have jurisdiction over the district of Bau. Sentence and conviction imposed on AP were quashed and the case was ordered to be tried at Bau court. It is submitted that if s419 has been referred to, the appeal might have concluded in a different way.

Development of Extra-territorial Jurisdiction Old s494 did not confer extra-territorial jurisdiction in our courts. After Rajappan, amendment was made to s494, and the Law Reform (marriage and Divorce) Act 1976. Bigamy committed outside Malaysia is triable and punishable by our local courts. Take note of more recent development by Parliament in widening the extra-territorial jurisdiction clause in legislations and statutory provisions.

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