The Malaysian Court System (MLS) PDF

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Bachelor of Law Year 1 Sem 3 - hierarchy of courts system in Malaysia Subordinate Courts Act 1948 Courts of Judicature Act 1964
Lt Kdr Balakrishnan v Menteri Pertahanan Malaysia [1994] 2 AMR 1045 Sova v Kasih Sayang Realty Sdn Bhd [1988] 2 MLJ 268...

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TUTORIAL 2: THE MALAYSIAN COURT SYSTEM ESSENTIAL READING Subordinate Courts Act 1948 Courts of Judicature Act 1964 Lt Kdr Balakrishnan v Menteri Pertahanan Malaysia [1994] 2 AMR 1045 Sova v Kasih Sayang Realty Sdn Bhd [1988] 2 MLJ 268 QUESTIONS 1. Discuss fully the terms “trial jurisdiction”, “sentencing jurisdiction” and “local jurisdiction”. -Trial jurisdiction means the power which is conferred to certain courts to examine, assess or hear or try a case and make legal decisions or judgements. For example. The section 65(1)(a) of the Subordinate Courts Act 2010 provides that sessions court has jurisdiction to try all actions and suits of a civil nature for the specific performance or rescission of contracts or for cancellation or rectification of instruments, Unlimited jurisdiction above all civil actions in respect of motor vehicle accidents, landlord and tenant disputes and distress In criminal matters, the SsC may try all offences other than those punishable with death & may pass all sentences except the death sentence – ss.63-64 SCA 1948. s.76 SCA 1948,it is provided that magistrates court will have general jurisdiction to try civil & criminal cases within its local limits & jurisdiction assigned to it or if no jurisdiction was assigned, arising in any part of the local jurisdiction of the respective HC. So these sections provide what types of cases could be trialed by respective courts. -Sentencing jurisdiction refers to the power of certain courts to grant or issue sentences and punishments such as fines, imprisonments etc. For instance, ´Sentencing powers (sentencing jurisdiction) are provided under s.87(1) of the SCA 1948 – not exceeding 5 years imprisonment, Fine of RM10,000, Whipping up to 12 strokes or a sentence in combination of the above ´A 2nd class magistrate may pass a sentence (i) imprisonment not more than 6 months, (ii) a fine not exceeding RM10,000, or (iii) a combination of those sentences ´The SsC may try all offences other than those punishable with death & may pass all sentences except the death sentence – ss.63-64 SCA 1948 So these sections provide what sentences could be ordered by respective courts.

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Local jurisdiction sometimes aka territorial jurisdiction. This refers to the place where the courts have jurisdiction over in Malaysia. The term “local jurisdiction” is defined under Section 3 of the Courts Judicature Act 1964 to mean (a) in respect of the High Court in Malaya, it will have jurisdiction over territory in the Peninsular (West Malaysia), whereas (b) the High Court in Sabah and Sarawak covers all of the territory in East Malaysia. ´the HC has jurisdiction over everyone & offences committed within its territory – s.22(1)(a)(i) CJA 1964 To determine the locality of our case and where or which court would be the most suitable or appropriate court for us be file a claim, we could look at Section 23 (1) of

the Courts Judicature Act 1964 which states that the High Court shall have jurisdiction to try all civil proceedings where:1. the cause of action arose; 2. the defendant or one of several defendants resides or has his place of business; 3. the facts on which the proceedings are based exist or are alleged to have occurred; or 4. any land the ownership of which is disputed is situated.

So these are used to determine where should the action be brought within Malaysia.´Exception to general rule - S.22(1)(a)(ii)-(iv) CJA 1964 – gives the HC jurisdiction to hear cases for offences committed by citizens & permanent residents as well as offences committed outside Malaysia (Msian vs Msian/foreigner vs Msian in other countries) so it is no longer within the local jurisdiction of Malaysia.

The term "extraterritorial jurisdiction" means that the courts would have the power to exercise jurisdiction over persons living in or incidents taking place outside of its local jurisdiction meaning outside Malaysia. is the legal ability of a government to exercise authority beyond its normal boundaries. So the courts could do so when it involves cases

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´(i)… ´(ii) on the high seas on board any ship or any aircraft registered in Malaysia ´(iii) by any citizen or any permanent resident on the high seas on board any ship or on any aircraft; and ´(iv) by any person on the high seas where the offence is piracy by the law of nations ´S.22(1)(b) CJA 1964 – extends the extraterritorial jurisdiction of the HC So these cases may be happening outside of Malaysia, meaning outside of the local jurisdiction of the courts, they could still be heard and punished under the written laws of Malaysia as if the act is done in Malaysia and this is provided in the statutes such as Extra-territorial offence act and etc.

Order 57 rule 1 and rule 4 of the Rules of the High Court 2012 which summarily provides that where a judge is satisfied that proceedings can be more fairly tried in some other court of coordinate jurisdiction, they may order a transfer of proceedings, having regard to the place is more desirable in the interests of justice o have the proceedings transferred. For example, in Amalan Lengkap Sdn Bhd (supra), the Defendant filed an application to transfer its counter-claim from the Melaka High Court to the Shah Alam High Court on the grounds of convenience. In Yee Teck Fah t/a Yee Teck Fah & Co v Lim Soo Chooi [2011] 9 MLJ 305, the Defendant obtained an order to transfer a suit from the Shah Alam Sessions Court to the Butterworth Sessions Court.

2. Identify the courts that would have the jurisdiction to hear the following cases:(a) One day whilst racing his speedboat near Pangkor Island, Crown Prince Kasim accidently caused the death of a swimmer. He was subsequently charged in the High Court for culpable homicide not amounting to murder. Crown Prince Kasim states that he should not be charged in the High Court but in the Special Court. Is he right? Why? Would it make a difference if he is Sultan Kasim? State your reasons. Culpable homicide = (in some jurisdictions, including Scotland, South Africa, and India) an act which has resulted in a person's death but is held not to amount to murder. High courts - According to S.22(1)(a)(i) The court of Judicature Act 1964 states that High court have unlimited jurisdiction in both civil and criminal cases, hence High court could hear any cases committed within its territory.

Special courts -

According to Art.182(3) Federal Constitution, special court have the jurisdiction to hear all cases involving YDPA or any Ruler of State in his personal capacity, and not any cases involving Regent of a State.

In this case, Crown Prince Kasim is not YDPA or any Ruler of State, hence he cannot be charged in special courts, therefore he is wrong making such statement. He could be charged in the high court. Furthermore, Culpable homicide is a jurisdiction under personal capacity. Case : DYTM Tengku Idris Shah Ibni Almarhum Sultan Salahuddin Abdul Aziz Shah v Dikim Holding Sdn Bhd & Anor (2002) If he is Sultan Kasim, then he is eligible to be charged in the Special court, because Sultan means he is now a ruler of state.

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established under Part XV of the Federal Constitution, whereby when a YDPA or a Ruler is charged, he will cease to exercise the functions as a YDPA or Ruler.

(b) Bella anak Tuas and Dorian anak Sipit are involved in a tussle involving ancestral land in Bintulu, Sarawak. They want to know which court will have the jurisdiction to hear their case. Advise Bella anak Tuas and Dorian anak Sipit. Would your answer differ if Bella anak Tuas wants to take action against Ahmad for molesting her? Why? Native courts -

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For cases involving ancestral land at Sarawak, Native courts in Sarawak will have the jurisdiction to hear their case. Native courts of sarawak is established under the Sarawak Native Courts Ordinance 1992, whereby Native Court of Appeal & Resident’s Native Court will act as the appellate courts, others like District Native court, Chief’s superior court, chief’s court and headman’s court will be the courts of original jurisdiction. S.5 (a) of the Native Court Enactment 1992 provides that Native Court in Sarawak shall have original jurisdiction in certain matters only, which involves matters like breach of native law or custom.

However, Native courts does not have jurisdiction over criminal offences unless provided by federal law. If Bella anak Tuas wants to take action against Ahmad for molesting her, which is a criminal offences, the court with such jurisdiction will be Magistrate courts *session court max penalty will be 10 year, beyond powers of the syariah court as molest will result in a punishment over 5 years -

Native Courts Act 1991 provide that Native courts only have jurisdiction to try any offence that is punishable for a term not exceeding 2 years or fine not exceeding RM5000 or combination of both.

Under S.5(b) of the Native Court Enactment 1992, cases which involve breach of native law or custom relating to religious, matrimonial or sexual matter where one part is native. Hence, since there is an involvement of natives, the case could be heard under the native courts of sarawak.

(c) Sally and Dan are a married couple. Dan converted to Islam because he has fallen in love with a Muslim girl. Sally now wants to divorce Dan.

Divorce & matrimonial cases could be hear in High Court (S.24 Court Justice Act 1964) Hence both parties could bring such matter to high court. Law Reform Act - either party of the marriage can apply for divorce even there’s a conversion

(d) Chong was arrested for refusing to convert to Islam by the religious authority of the State he resides in. According to the religious authority, everyone in the State has to profess the religion of Islam upon the enactment of the State Religion Act. Those who refuse will be arrested and sent to prison Constitution 128(1) forcing someone to enter into the religion is unconstitutional. (e) Abu is from Johor. He entered a sale and purchase agreement with Chong, who hails from Penang, to buy Chong’s double storey bungalow located in Pahang. Chong had a change of heart two months ago and instead sold the house to Lim. Abu wants to take action against Chong for breach of contract but does not know in which court to initiate proceedings. The matter between Abu and Chong here is a civil matter. Civil matters can be dealt within the sessions court however certain actions are outside the jurisdiction of the Sessions Courts. These, enumerated under s 69 SCA ( subordinate courts act) 1948, are generally actions that are likely to raise difficult points of law which are best dealt with by the more experienced High Court judges. These are actions: 1 . concerning immovable property except as provided in SCA 1948; 2. for the specific performance or rescission of contracts; Hence the high Court has jurisdiction in this matter. The general civil jurisdiction of the high court is set out in S.23 CJA 1964. Based on the section Abu can bring on the case in the High Court of Pahang or the High Court of Penang. This is because the cause of action has taken place in Pahang, the facts on which the proceedings are based exist is also in Pahang and the ownership of the land which resulted in dispute located in Pahang. Abu can bring this case to the High Court of Penang because it is stated that the civil proceedings can bring where the defendant resides or has his place of business. In this case, Chong’s place is Penang. Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where (a) the cause of action arose; (b) the defendant or one of several defendants resides or has his place of business;

(c) the facts on which the proceedings are based exist or are alleged to have occurred; or (d) any land the ownership of which is disputed is situated, within the local jurisdiction of the Court and notwithstanding anything contained in this section in any case where all parties consent in writing within the local jurisdiction of the other High Court.

Advise Abu. (f) Ahmad (a Muslim) is a neurosurgeon. He had operated on Mrs. Chong last year but due to some technical issues which were beyond his control, Mrs. Chong became paralysed from the waist down. Mr. Chong, after consulting several lawyers, decided to sue Ahmad for negligence, asking for, amongst others, exemplary damages amounting to RM 2.3 million. As Ahmad was leaving the hospital, Siti, a nurse who fancies Ahmad, asked Ahmad if he could send her home, as he had been doing for the past month. Ahmad agreed. Upon reaching Siti’s house, Siti asked if Ahmad can assist to change a light bulb in her room. Ahmad agreed. Unknown to Ahmad, Siti had laid a trap for him and they were caught committing close proximity, an offence under the Syariah Criminal Offences (Federal Territories) Act 1997. Officer Rahman was one of the religious officer who caught Ahmad and Siti for close proximity. Seeing that Ahmad was well to do, Officer Rahman took Ahmad aside and informed Ahmad that he (Officer Rahman) will let Ahmad go if Ahmad pays him RM1000. Ahmad became agitated and he started shouting at Officer Rahman. Officer Rahman could not stand the shouting and he threw a punch at Ahmad’s face, which caused Ahmad to fall over and hit his head on the pavement. Blood started gushing from the wound and he was sent to the hospital for treatment by the religious officers. Officer Rahman was subsequently arrested and was told that he will be charged for voluntarily causing hurt in order to extort money from Ahmad, an offence which carries imprisonment up to 10 years and he shall also be liable to a fine or whipping. While recovering in the hospital, Ahmad’s wallet and handphone was stolen by John, a 16 year old street urchin, who will frequent hospitals in search of ‘unattended valuables’. John was finally caught by the hospital’s security team and was informed that he will be charged for stealing Ahmad’s wallet and handphone, an offence which is punishable with 7 years’ imprisonment or a fine or both. Advise Ahmad as to the respective courts that will have the jurisdiction to hear all the above issues.

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Ahmad and Rahman a.) Session court -

The court may try all offences other than those punishable with death and may pass all sentence except the death penalty (BUT redundant since sentencing jurisdiction is similar to magistrate court, so why come here)

b.) Magistrate Courts (1st class) -

Has jurisdiction to hear offences punishable with up to 10 years imprisonment or fine In this case, the offences that Officer Rahman had committed came under the jurisdiction of the magistrate court However, sentencing given is only a maximum of 5 year imprisonment, fine of RM10k, whipping up to 12 strokes or a sentence in combination of the above Can pass more than what was conveyed by section 87(1) provided he/she was given power to do so by any law in force

c.) Corruption (the RM1000 thing) -

Charged under Malaysian Anti-Corruption Commission Act 2009 (doesn’t matter if he took the corrupted money ) If he actually took the money: Can be charged under the Penal Code

Ahmad and John -

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Child Court Child court can try all offences committed by a child except those punishable with death A child according to s.2 Child Act 2001 is “a person under age of 18 years or in event of criminal proceeding, a person who has attained the age of criminal responsibility which is 10 years (s.82 penal code) John is 16 so is a child Imprisonment can be ordered since he is 14 and above...