Tutorial 5 (MLS) PDF

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QUESTION 2Raja Ahmad was riding a motorcycle in Ipoh without lights at 8 p. and at an intersection when the traffic lights were red he did not stop. Chan a policeman, stopped him and immediately issued onto him with a summons for both offences.Don, another policeman, while examining the motorcycle t...

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QUESTION 2 Raja Ahmad was riding a motorcycle in Ipoh without lights at 8.00 p.m. and at an intersection when the traffic lights were red he did not stop. Chan a policeman, stopped him and immediately issued onto him with a summons for both offences. Don, another policeman, while examining the motorcycle that Raja Ahmad was riding found a packet of whitish powder, suspected to be drugs under the seat of the bike. Don told Chan that they had to arrest Raja Ahmad and both of them took him to the police station for further investigation. Subsequent police investigations confirmed that the suspected drugs were heroin weight at 1.2 kg. (a) Assuming that Raja Ahmad is to be charged for traffic offences, which court will have the jurisdiction to try the case? Explain the jurisdiction of the court. (10 marks) 1ST CLASS OFFENCE- TRAFFIC OFFENCES (SECTION 116A OF THE ROAD TRAFFIC ACT)- Notwithstanding anything contained in any written law to the contrary, a court of a First Class Magistrate shall have the jurisdiction to try any offence under this Act and to award the full punishment for any such offence. The Magistrates’ Courts have general jurisdiction to try civil and criminal cases within the local limits of jurisdiction assigned to them, or if no such local limits have been assigned, arising of any part of the local jurisdiction of the respective High Court. In addition, they may issue summons, writs, warrants, and other process, and make any interlocutory or interim orders, including orders concerning adjournment, remand and bail. They may also conduct inquests or inquiries of death. The Magistrates’ Courts also have specific jurisdiction. This depends on the status of the magistrates. The first class magistrates has the authority to try all actions and suits where the amount in dispute or value of the subject matter does not exceed RM100,000.00 It possesses jurisdiction to try all offences for which the maximum term of punishment provided by law does not exceed 10 years imprisonment, or all offences punishable with fine only. Specific jurisdiction to try offences under s. 392(robbery) and s457(lurking, house trespass, house breaking by night) of the Penal Code. Where a person is found guilty, the magistrate may pass any sentence allowed by law not exceeding, five year’s imprisonment, a fine of RM10,000, whipping of up to 12 strokes and a combination of any of the above mentioned.

(b) If Raja Ahmad is to be charged under section 39B of the Dangerous Drugs Act, which court will have the jurisdiction to try the case? Explain the criminal and civil jurisdiction of the court. (10 marks) HIGH COURT- DRUG TRAFFICKING OFFENCE IS PUNISHABLE BY DEATH (SECTION 37 OF THE DANGEROUS DRUGS ACT 1952)(POSSESSION OF 15G OR MRE IN WEIGHT OF HEROIN- DRUG TRAFFICKING) General jurisdiction- to try all offences out of the jurisdiction of the session and magistrate court Specific jurisdiction- to try all offences that are punishable by death sentence

Firstly, pertaining to the original jurisdiction, it serves an unlimited jurisdiction in both civil and criminal matters. In the former, Section 23(1) of CJA provides the operation of a general civil jurisdiction under the High Court. This is where the cause of action arose within Malaysia or the defendant resides or has his place of business within Malaysia. The general jurisdiction also covers where the facts on which the proceedings are based, exist or are alleged to have occurred within Malaysia or any land of ownership of which is disputed is situated within Malaysia. Section 24 on the other hand further assert that it will have the jurisdiction to try all types of offences regardless of value which includes divorce, matrimonial, admiralty, bankruptcy, guardianship of infant, wills and even probate. For the latter, section 22(1) of CJA stated that the High Court can exercise their jurisdiction relating to criminal matters over citizen and noncitizen of the Federation. Moreover, it is also allowable for the High Court to pass any sentence allowed by law regarding to criminal matters under the original jurisdiction and this is granted under the virtue of Section 22(2) of CJA. Next, for criminal matters, the High Court has jurisdiction over citizen and non-citizen and offences committed within its territory in pursuant to Section 22(1)(a) of CJA. Moreover, the offences committed on the high seas on board any ship/ aircraft registered in Malaysia, the offences committed by any citizen or permanent resident on the high seas on board any ship or aircraft and the offences committed by any person on the high seas where the policy is piracy can be tried by the High Court. In accordance with Section 22(1)(b) of CJA, the High Court has jurisdiction over citizens and permanent residents and offences committed outside Malaysia and this is known as extraterritorial jurisdiction.

ii) If he is not satisfied with the judgment of the court, which court can he appeal to? Discuss the jurisdiction of the court. (10 marks) COURT OF APPEAL- APPELLATE JURISDICTION

In the Court of Appeal, the only jurisdiction available is the appellate jurisdiction. For matters regarding civil, Section 67 of the CJA stated that it has its authority to hear and determine any appeal from the decision of the High Court. Not to mention, Section 68 affirmed that the non-appealable matters are when the amount or value of the subject matter of the claim is less than RM250,000, except with leave of the Court of Appeal. This is also extended to where the judgment is made by consent of parties and where it relates to costs only, except with the leave of the Court of Appeal. It should also be noted that the non-appealable matters include where by any written law for the time being in force, the judgement of the High Court is expressly declared to be final. On the other hand, Section 50(1) of the CJA provides that the Court of Appeal shall hear and determine any appeal against any decision made by High Court in the exercise of its Original jurisdiction and Appellate or revisionary jurisdiction in respect of any criminal matter decided by the Session court. Not to mention, S.50(2) also stated that an appeal may be made with the leave of the court against the decision of High Court in exercise of its revisionary jurisdiction by the Magistrate court.

(c) Raja Ahmad claimed that he is a nephew of a Sultan in Malaysia and therefore he should be tried at the Special Court. Explain to him the reason for the establishment, composition and jurisdiction of the Special Courts (10 marks) SPECIAL COURT- THE YDPA & MALAY RULERS The special court, which was established in 1993 was a compromise between the Malay rulers and the govt following the alleged assault of a hockey coach, by the Sultan of Johor on November, 1992. It is comprised of the Chief Justice of the Federal Court, the Chief Judges of the High Court, and two other persons who hold or have held office of the Federal court or a high court appointed by the conference of rulers. Furthermore, the registry for the Special court can be found in Kuala Lumpur. The special court operates on an original jurisdiction. It shall have exclusive jurisdiction over all proceedings by or against the YDPA or the ruler of a state in his personal capacity. As such, any civil cases or criminal offence committed by the YDPA or the Ruler of a state can only be tried in the Special Court, no matter the cause of action rose. However, any action must first be approved with the consent of the Attorney General so as to ensure there is a prima facie case against the accused. Once charged with an offence under any law in the Special Court, the YDPA or Ruler will no longer be able to perform their duties or exercise their executive functions. If convicted of an offence, a Ruler shall cease to be the ruler of the state, unless the Conference of Rulers sees fit to grant a free pardon. In regards with Raja Ahmad's situation, he may not be tried under the Special Court as he is not considered a Ruler or even the YDPA

QUESTION 3 1. a) Edward, a British citizen, is an affluent businessman and has recently entered into a business deal with a Sultan in his personal capacity. The said deal, however has turned sour. Edward now intends to sue the Sultan for breach of contract. State the jurisdiction and composition of the court that can hear Edward’s case. Explain the prerequisite that have to be met before the matter can be heard by the court. (10 marks)

The composition of the Special Court of the Rulers are as follows. The Special Court was established in 1993 under Part XV Article 182(1) of the Federal Constitution. The court comprises of a Chief Justice of the Federal Court (the Chairman), Chief Judge of the High Courts of Malaya, Chief Judge of the High Court of Sabah and Sarawak, and two other judges who hold or have held office as judges of the Supreme Court or a High Court. These two latter two judges are to be appointed by the Conference of Rulers. A special court was established in 1993 with jurisdiction over cases involving the rulers of the states of Malaysia and the Yang di-Pertuan Agong. Under Article 182(3) of the Federal Constitution, The Special Court shall have exclusive jurisdiction to try all offenses committed in the Federation by the Yang di- Pertuan Agong or the Ruler of a State and all civil cases by or against the Yang di-Pertuan Agong or the Ruler of a State notwithstanding where the cause of action arose. The court hears all criminal cases involving alleged offences committed by the rulers or the Yang di-Pertuan Agong and all civil cases involving them. The prerequisite that have to be met before the matter can be heard by the court is that no civil or criminal action can commence against their Highnesses in their personal capacities except with the consent of the Attorney-General as stated in Article 183 of the Federal Constitution. This means that to commence an action against the Yang di-pertuan Agong (YDPA), consent of the Attorney General is needed. Other than that, only Malaysian citizen can sue the YDPA. This can be seen in the case of Faridah Begum Bte Abdullah v Sultan Haji

Ahmad Shah Al Mustain Billah [1996] 1 MLJ 617. In the following case, the plaintiff was a Singaporean businesswoman and the defendant was the Sultan of Pahang. Faridah claimed that the Sultan had committed libel against her, and sued for damages. The Attorney General consented to the case, permitting the Special Court to hear it. However, whether the alleged libel had in fact occurred was never decided, as the Special Court ruled 4-1 that non-Malaysians could not bring a suit against the Malay rulers. The court held that it was not possible for Article 182 of the Constitution to confer the right to bring a suit against a Malay ruler upon non-Malaysians, because this would be ultra vires Article 155 of the Federal Constitution.

b) Peng Chu Ree was recently arrested and charged for robbery which is punishable under section 392 of the Penal Code. Section 392 of the Penal Code provides that “Whoever commits robbery shall be punished with imprisonment for a term which may extend to fourteen years, and he shall also be liable to fine or to whipping.” a) State the jurisdiction and composition of the court that can hear his case. (10 marks) The court that will have the jurisdiction to try the offence is the Magistrate court. The composition of the Magistrate court are as follows. The Magistrate courts are established under Section 76 of the Subordinate Courts Act 1948. Section 81 of the Subordinate Courts Act states that magistrate court is seated by one Magistrate and appointed from Judicial Legal Service. Secondly, magistrate courts only have original jurisdiction. For civil matters, magistrate courts have the authority to try all actions and suit where the amount in dispute or value of the subject matter is not more than RM 100 000. Meanwhile, for criminal matters, the magistrate court can try all offences that is punishable with fine, or offences that has the punishment of imprisonment not more than 10 years. Thirdly, the magistrate courts have a specific jurisdiction on criminal matters. It concerns with Section 392 of the Penal Code which is robbery and Section 457 of the Penal Code which is lurking, house trespass and house breaking by night. By law, these offences hold the punishment for up to 14 years of imprisonment which is beyond the original jurisdiction of the magistrate courts. However, the granted specific jurisdiction to magistrate courts enables it to hear cases regarding the two stated sections. Lastly, if a person is found guilty, the magistrate courts may pass any sentence allowed by law not exceeding 5 years imprisonment, a fine not more than RM 10 000, whipping up to 12 strokes, or a combination of any of the stated punishments.

(b) If he is not satisfied with the judgment of the court, which court can he appeal to? Discuss the criminal jurisdictions of the court. (10 marks) HIGH COURT LA SUNDAL - Why only HC can hear the appeal? i. Session courts do have appellate jurisdiction - Criminal Jurisdictions i. Original criminal jurisdiction  General jurisdiction  Specific jurisdiction ii. Appellate criminal jurisdiction...