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MALAYSIAN LEGAL SYSTEM on civil & criminal exam notes


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MALAYSIAN LEGAL SYSTEM on civil & criminal exam notes

  1. 1. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Civil Procedure; preliminary matter Preliminary Matter  Parties - Parties in action (whether suing or being sued) must be;- a) Sui juris (age of majority); which the Age of Majority Act provided as 18 years old. b) Compos mentis (sound of mind); must not be a patient as defined in Mental Disorder Ordinance c) Acting personally ( pursuing his own claim or in a representative capacity) - Person not fulfilling the requirement of sui juris & compos mentis is considered to be person under disability. a) O76 R1 provided that person under disability is an infant or a child. b) O76 R2 (1) provided person under disability may be represented by his next friend or guardian ad litem. c) O76 R3(2) stated that the representation made must be through a solicitor. - Incorporated bodies/companies a) A body shall have a corporate status upon recognition under the Companies Act. b) Section 16(5) of Companies Act provided that a company may sue or be sued under its own name as this section granted a legal status to a company. c) O5 R6 (2) provide that a company must act through solicitor in its action. - Firm/Partnership a) Section 6 of Partnership Act defined a firm as a person who has entered partnership with another. b) O77 R1 provide a firm may sue or be sued in the name of the firm. c) In Madan Lal v Ho Siew Bee it was held that partnership’s/ firm’s name is not a legal persona, therefore, a firm may also be sued or sue in the name of the partners’ itself. - Individual trading as a firm/ Sole proprietor business a) O77 R9 provide that ; i- He may be sued under the name of the business. ii- He however, may only sue under his own name. b) Wee Tiang Kheng v Ngu Nii Soon where it was held that no prejudice or injustice would be caused to the proprietor of the business if he is sued in his own name.
  2. 2. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee - Estate of a deceased person. a) Section 8(1) of Civil Law Act provides that cause of action may survive against tortfeasor death and by virtue of O15 R6A, action may be taken against his estate. b) A person may die in two ways; i- Testate (with a will) Executor/Executrix may sue on behalf of the estate prior to the extraction of the grant but may not be sue prior to the extraction. Meyappa Chetty v Subramaniam Chetty held that because the executor derives his title from the will, not the probate. The production of probate is merely a rule by court to recognize his title and a mere formality. ii- Intestate (without a will) Administrator cannot sue or be sue prior to the extraction of grant of probate as was held in Controller of Income Tax v Yan Tai Min. - Representative Action a) O15 R12 stated that where a numerous person have the same interest in any proceeding, be represented by one of the interested person. b) Duke Bedford v Ellis held that in order for representative to be valid, there must be common interest, common grievance, and the relief sought is beneficial to all whom he represents. c) The principle in Bedford was followed in Palmco Holdings v Sakap Comodities. d) In Smith v Cardiff Corporation, the court held that the representative action was misconceived as the scheme in dispute did not affect all the council tenants. - Joinder of Parties a) O15 R4 provide that two or more persons may be joined together as p/f or d/f if; i- If a separate action were brought, a same question of law or fact would arise in all the action and; ii- The claims arise out of the same transaction/series of transaction.
  3. 3. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee  Cause of Action (COA) - Definition; a) Cooke v Gill – as every fact which is material to be proved to entitle the plaintiff to succeed. b) Lim Kean v Choo Koon – the fact which are material to be proved to entitle the p/f to succeed must have already happened. - Incomplete COA a) Taib v Mohamad Abdullah b) Where the plaintiff’s action failed as the cause of action i.e. malicious prosecution was incomplete at the time of the suit.  Locus Standi - Definition a) Govt of Malaysia v Lim Kit Siang b) A special interest recognized by law in that particular matter which enabled him to appear before the court. - Mohamed Ismail v Tan Sri Osman a) Where the court held the plaintiff, is an aggrieved person, therefore, deem to have sufficient interest in the matter (land) in dispute. - Atip Bin Ali v Josephine Doris Nunis a) It was held defamation is personal to the person defamed. b) Therefore, the plaintiff action failed as they had no locus standi i.e. special interest in the matter.
  4. 4. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee  Limitation Period - Time limits are imposed on civil action. Action taken exceeding the limitation period will be time barred and not entertained by court. - Section 6(1) of Limitation Act provided that the limitation period for breach of contract or tort is six years from the date on which the COA accrued, not on the date the COA is discovered. a) Cartledge v Jopling in cases of contraction of diseases, COA accrues at the date of loss/damage suffered by the plaintiff as a result of defendant action irrespective of plaintiff’s knowledge of the damages. b) Sivapiran v Lim Yoke Kong where it was held that the in cases of fraud in regard to COA, the limitation period commence at the discovery of the fraud. - Section 9 (1) of Limitation Act provide that for the action to recover land, the limitation period is 12 years from the date of the right of action accrued. - Section 22(1) of LA provides that there shall be no limitation period in cases of breaches of trust, recovery of trust property. - Section 7(5) of Civil Law Act; limitation period for dependency claim is 3 years. - Section 8(3) of CLA; action against estate of deceased tortfeasor is not maintainable unless; a) The COA were pending at the date of his death or; b) Are taken not later than 6 months after his personal representative took out representation. - For person under disability; a) Section 2 of LA provided that an infant, person of unsound mind is a person under disability. b) Person under comatose condition is also under disability. c) Section 24(1) of LA provides that the limitation period shall commence when the person ceases to be under disability or died, and the limitation period is 6 years. - Fraud and concealment a) Section 29 of LA provides that limitation period shall not begin until the fraud or mistake is discovered. b) Sivapiran v Lim Yoke Kong c) Credit Corp v Fong Tak Sin held that mistake/fraud is essential elements to apply Section 29. - Public Authorities Protection Act a) Section 2 of PAPA provides 36 months of limitation period in civil action. b) In Lee Hock Ning v Govt Of Malaysia provide that Section 2 of PAPA does not protect public authorities from limitation period of a contractual breaches.
  5. 5. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Writ Commencement  O5 R1 a) Provides that writ is one of the methods to commence civil action in Court.  Jumatsah v Voon Kim Kuet where an action is deemed to commence when the writ is filed at the High Court Registry.  O5 R2 – Action which must begun by writ - relief for torts committed other than trespass to land, those alleging dealings of fraud, those of breach of any duty, those of breach of promise to marry, and those where patents have been infringed. - The writ is preferred here because substantial disputes of fact are likely to occur in cases of these natures, and thus witnesses would need to be called to establish or disprove such facts.  O5 R4 (2)  Action which writ may be used. - Issues likely to turn on the construction of any written law or any instrument made under any written law, or of any contract or document. - There is unlikely to be any substantial dispute of fact. Issue of Writ  O 6 R6 (2)  plaintiff or his solicitor shall leave the original copy of writ to the Registrar and copies as in accordance to the number of defendant to be served when presenting it for sealing.  O6 R6 (3)  The Registrar shall then issue the writ by assigning a serial number to the writ, and shall sign, seal and date the writ.  In Kok Song Kong v Brunei Shell, Court held that the writ is deemed issued at the date it was filed instead of the date it was sealed.  O 6 R2 (1)  the writ must be indorsed either with a statement of claim or concise statement of the nature of claim or the relief sought by the plaintiff. - Khoo Kay Hock v Ketting where the Court held that the court is not concerned with a good or bad indorsements.
  6. 6. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Duration, expiration and renewal of Writ  O6 R7 (1)  writ has a life span of 6 months.  Trow v Ind Coope  writ shall be deemed to have expired a day earlier from the date of its issue in the preceding year.  If limitation period has expired; issue fresh writ (if not time barred) or renew. - Kleinworth Benson Ltd v Barbrak Ltd where Court held that giving a good reason was sufficient to renew. - Kun Kay Hong v Tan Teo Huat  defendant’s solicitor request to withhold the service of writ was deemed to be a good reason - New Ching Kee v Lim Ser Hock  reason on the ground of that the file was mislaid and a negotiation was in process was held not to be a sufficient reason.  O6 R2A  procedure to renew writ - Must be made by ex parte summons and that it must be supported by an affidavit showing that effort has been made to serve the writ within one month from the date of the writ being issued. Service of writ  O10 R 1(1) A writ must be personally served on each defendant by; a) Prepaid registered post b) To his last known address c) If practicable, first attempt should be made not later than one month from the date of its issue.  How to give effect to personal service? - O62 R3 a) By leaving a copy of the document to the person to be served, and if so requested, show him the sealed & office copy of the writ. b) By handing the document to him or to leave it as near as physically possible for him to assume possession of the document. c) The purpose of leaving the document with him must also be informed. d) Thompson v Pheney where it was held that throwing the writ at the person to be served after refusal to accept is sufficient service.
  7. 7. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee  Insufficient service - Banque Rusee v Clark where it was held that the failure to inform the nature of the document and the purpose of leaving the document is an insufficient service. - Leaving the writ with the spouse of the person to be served or with his agent is also an insufficient service.  Exception i- O10 R 1(2) – if defendant’s lawyers endorses he accepted it on behalf of defendant. ii- O10 R 1(3) – shall deem to be served if defendant enters unconditional appearance. iii- O75 R 3 – service of writ on govt, for fed – on AG or other designated officer. For state, on State secretary. Substitute Service  O62 R5 – court may order for substitute service if it is impractical to serve the writ personally.  May only be affected pursuant to court order.  To procedure to obtain this order is by ex parte summons supported by affidavit.  Instances when the substituted service are required: I- Whereabouts of d/f is unknown. II- Whereabouts is known but is not present to accept the service of writ. Before substitute service is applied, plaintiff should conform to the practice note of 1/68. Practice Note 1/68 a) Two calls should be made. b) Calls should be made to defendant resident, permanent or temporary. If claim is business related, to his business address, and if left at his address, it must be in a sealed envelope addressed to do defendant. c) Calls should be made on weekdays and on reasonable hours. d) Each call should be made on two separate days. e) Second call should be made by appointment by letter sent to defendant by ordinary prepaid post, giving not less than two clear days notice, enclosing a copy of the document to be served and offering opportunity of making different appointment. f) On keeping the appointment, the process server should inquire whether defendant had received letter of appointment, and if stated to be away, should inquire whether the letters has been forward to him. g) Affidavit in support of the application should deal with all foregoing application. h) However, in Re Nirmala a/p Muthiah, it was held that Practice Note 1/68 is not applicable where the defendant whereabouts is unknown.
  8. 8. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee  Modes affecting substituted service; - Newspaper advertisement. - By posting a copy of the writ on the court notice board. - By sending a copy of the writ to the defendant last known address. - By posting/affixing a copy of the writ on the conspicuous part of defendant premises. a) Direction of substitute service. i- Development & Commercial Bank v Aspatra ii- Where it was held that the order of substitute service of court must be obeyed and can only be challenged as regard to its validity. b) Failure to comply with court direction in substitute service. i- Leow Boke Choi v Asia Motor ii- Where court held that the plaintiff’s judgment was irregular as the order of substitute service had not been complied as no copies of summons, soc, and the order was posted on the notice board of the courthouse in KL. Service out of jurisdiction a) Foreign defendant within jurisdiction of court. - Atmaram v Essa Industries - Where court held that a generally endorses writ can be served to defendant, a foreign company, while on a visit to Singapore although the company had neither an office nor an agent in the Singapore. - O6 R6(1) provided that no writ out of jurisdiction under O11 shall be issued without the leave of the court, and the failure to obtain leave will invalidate the writ. - Therefore, must first obtain leave of court. b) Foreign defendant outside jurisdiction of court. - O6 R6(1)- see above - O11 R4 (2) – where court held that it will not granted its leave unless is made sufficiently that the case is proper one for service out jurisdiction. He must satisfy the court that; i. Justice could not be obtained if proceeding were to be taken in alternative legal system. ii. Or could only be obtained with excessive cost, delay, or inconvenience.
  9. 9. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Trial- 1st Stage Appearance - A person served with writ must enter an appearance. - O12 R4 – provide time limit to enter appearance a) 8 days if served within local jurisdiction and 12 days if served outside jurisdiction (including day of service) b) In Borneo, 10 days, or in cases where defendant residence’s or office’s is not within division or residency of the registry of which the writ was issued, 20 days (including day of service). Mode affecting appearance - O12 R2 – Form 15 – unconditional appearance - Signed by solicitor or personally signed by defendant. - Tantamount to waiver of any irregularity in service of writ. - O12 R6 – Form 16 – conditional appearance. - Means, defendant intends to raise procedural objection to set aside the writ. - O12 R7 – setting aside the writ - Defendant have 14 days of appearance to apply to court for an order to set aside the writ. Judgment in default of appearance - Violation of O12 R4 (time limit for appearance) - O13 R1-5 provide that failure to enter into appearance, court may make JID of appearance and granted a) Claim for liquidated damages, unliquidated damages, detinue, immovable property or any combination of all the above.
  10. 10. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee - However, JID may not be granted in claims of: a) Injunction, declaration, rectification, accounts specific performance. - O13 R6 provide that in case where remedies is outside scope of O13 (JID), a) after expiry of time limit to enter into appearance, b) Along with affidavit proving service of writ and SOC by plaintiff has been served to defendant, c) Plaintiff is to proceed as if defendant had entered into an appearance. d) As was illustrated in Leong Seng Kiat v Khaw See Song. Procedure for JID - O13 R7 – must provide - Form 17 (certificate of non appearance) - Form 13 ( to prove due service of writ/ or writ endorsed by defendant’s solicitor that he accept on behalf of defendant) - Two completed judgment form. JID of Defence - O19 R7 - After plaintiff serves SOC, defendant shall have 14 days to serve the statement of defence, failing which will entitle the plaintiff to obtain JID of defence against defendant. Setting aside JID - Lord Atkin in Evans v Bartlam; - Court has absolute discretion to set aside any JID Procedure to set aside JID - O42 R13 – application to set aside JID must be made within 30 days of receipt of judgment/order. - Tian Yan Onn v National Holidays – delay of 7 months was held to be too late to apply to set aside JID and thus, not allowed. - Fira Development v Goldwin – delay is only one of the factor to be taken into account when setting aside JID. Other factors are regular or irregularity & whether there is defence on merits. Type of JID - Final JID O13 R1 Plaintiff may proceed to enforce judgment. - Interlocutory JID O13 R2 & 4 Plaintiff must proceed to assessment of damage. O37 R1 assessment of damage is done by the Registrar.
  11. 11. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Summary Judgment - O14 R1 - To obtain judgment before trial. - Where plaintiff has unanswerable case, or defendant is unable to provide defences, it is not justified to make the plaintiff wait. Time & Ground for Summary Judgment - O14 R1 a) Defendant has enters an appearance. b) After SOC have been served to defendant. c) After plaintiff shows that defendant has no valid defences to the claim. - O14 R1 (2) Application of SJ is not applicable in; a) Allegation of fraud, seduction, breach of promise to marry, malicious prosecution, wrongful imprisonment, defamation. Procedure to make application for SJ - O14 R2 The summons must be supported by an affidavit that must state the deponent belief that defendant has no reliable defence. - O14 R2A Provide that O32 R2 is applicable Affidavit intended to be used in support of the application must be filed and served to the other party within 14 days of filing. Court has discretion to dismiss or allow adjournment o enable plaintiff to rectify omission (to file a corrective affidavit stating deponent’s belief that defendant has defence to the claim). - O14 R2 (3) The document in of application to SJ must be served to other party in 14 days from the issue of the summons. - O62 R6 affecting service a) Leaving document at proper address of defendant. b) By prepaid registered post c) By Court direction. d) Business address of defendant’s solicitor. e) Last known address.
  12. 12. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Seah FJ in National Company for Foreign Trade v Kayu Raya - Order 14 application will only be considered if a) Defendant has entered an appearance. b) SOC has been served to defendant. c) O14 R2 has been complied – issue summons supported by affidavit stating deponent belief that defendant has no reliable defence to plaintiff’s claim. - Was further held that, O14 application will not be allowed if; a) No SOC has been served. b) Endorsement on writ is outside the scope of O14 c) The affidavit made in support of the application is defective. d) Be made against government. Time limitation in application of O14 There is no time limitation, but it is advisable to apply as promptly as possible as the failure to act promptly will have the Court to ask for good reason for the delay. - CGIR v Weng Lok Mining Where it was held that in Ramadhan month, where civil servants were allowed to leave work at 2 PM is a sufficient reason for delay. - Standard Chartered Bank v Eng Seng Kiat - Where court held that the failure to explain the delay of two months of the application of Order 14 is sufficient for the court to set aside SJ application without the need to consider the merit of the case.
  13. 13. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Trial- 2nd Stage Pleadings Pleadings are the process of exchanging document between parties in a civil suit. Function a) To define issues between parties which require to be tried. b) To enable defendant to know the exact nature of claim and relief sought by plaintiff. c) To enable plaintiff to ascertain the exact nature of defendant defence. d) To assist court in determining issues in dispute e) To eliminate the element of surprise. f) To save time of parties, court, counsels, and reduces cost of litigation. Importance of pleadings Lee Ah Chor v Southern Bank held that vital issues not raised in pleading cannot be allowed to be argued and succeed. Trial without pleadings - O18 R22 a) Party may apply for an action to be tried without pleadings. b) The mode of trial would be interpartes summon supported by affidavit. c) Also provide that in cases of false imprisonment, malicious prosecution, seduction, breach of promise to marry, defamation, allegation of fraud, is mandatory to have pleadings. i. O5 R4 Cases involving construction of written law may not have pleadings ii. O15 R16 Action for declaration. iii. Action where defendant admits liability and only disputes the quantum of damages.
  14. 14. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Filing of pleadings  Statement of Claim - O18 R1 If the writ is not endorsed with SOC, plaintiff must served SOC within 14days after defendant enters an appearance. - O19 R1 Failure to comply may have the court to dismiss the action.  Statement of Defence - O18 R2 Must serve the SOD within 14 days of entering appearances or after has been served with SOC or whichever later. - O19 R2-7 - Failure to comply may result in JID of defence against defendant.  Reply - O18 R3 - After the defendant serves SOD, the plaintiff must, within 14 days after service of SOD, serve a reply, if any. Formal Requirement of pleadings - O18 R6 - Must bear on its face; a) title of action b) description of pleadings - Dates, sums, & other numbers are expressed in figures. - Indorses by a person suing, or defends, with his name and address or if represented, by name or firm & business of the representing solicitor. - Every pleading must be signe by party’s solicitor, or if he is not represented, personally signed the pleadings.
  15. 15. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Rule of pleadings - O18 R7 - Pleadings may only contain statement of facts, not the evidence to prove the fact. - Only Fact is to be pleaded, not law. - Middlesex CC v Nathan where it was held hat raising a point of law is permitted. Close of pleadings - O18 R 14 If no reply is served, pleadings are deemed to be closed after service of defence. - O18 R20 If there is a reply served, pleadings are deemed to be close 14 days after service of reply. Striking out pleadings - O18 R19 Court may at any stage struck out any pleading or indorsement if a) Disclose no reasonable cause of action – Taib bin Awang v Mohd Bin Abdullah. b) Scandalous, frivolous or vexatious - MacDougall v Knight where the action has already been decided on merits – res judicata, also, an abuse of process of courts. c) Prejudice, embarrass, or delay the fair trial of the action. d) An abuse of the process of court. Time to strike out pleadings - Leading case is Jamir bin Hassan v Kang Min - Where it was held in this case that the general rule is that it should be made as promptly as possible, before the close of pleadings. - However, court may, in special circumstances strike out pleadings after the close of pleadings. - But, if the action has been set for trial, pleadings cannot be strike out.
  16. 16. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Discovery & Inspection of document i. Functions - To provide parties with relevant documentary material for appraisal of strength or weakness before trial. - To provide basis of fair disposal of the proceedings before trial. - To enable parties to use or before the trial or adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against them. - To eliminate the element of surprise relating to the documentary evidence. - To save time of parties, court, and counsel thus, reducing cost of litigation. ii. General rule - Process of discovery is only allowed against parties to an action. A stranger may only be subpoenaed to appear in court to give evidence & to produce document at the trial itself. - Therefore, a party may only inspect the document in possession of stranger only at trial. iii. Exception - Norwich Pharmacal v Commissioners of Customs & Excise - By Lord Reid - Where a person is not personally liable, but involved in the event whether voluntary or not, is under duty to provide full information to disclose any wrongdoing to the victim in the action. - Was applied in Malaysian case of First Malaysian Finance v Dato Mohd Fathi iv. Process of discovery a) Automatic discovery - O24 R2 - Within 14 days of the close of pleadings b) Court order - O24 R3 - Court may give order to start process of discovery
  17. 17. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Inspection a) O24 R9 - In compliance with automatic discovery or court order discovery, party must allow the other party to inspect his document and take copies of it. - A notice stating time and the place to inspect the document must also be served within 7 days of service of reply to specify place. b) O24 R10 - Party in any cause is entitled to serve notice on the other party requiring the other party to produce document for inspection. - The other party, must, within four days, after service of such notice produce the document, and serve the party requiring inspection of the document, with notice specifying the place to inspect the document within 7 days of the notice specifying the place. c) O24 R16 - Failure to make discovery tantamount to contempt of court. - Court may dismiss plaintiff action or struck out defendant defence. Pre Trial Case Management a) O34 R2 - After 14 days of close of pleadings, issue a court notice from the Registry of court requiring parties to action to attend before judge. - Failure to comply, court may direct Registry of court to issue notice to plaintiff to show cause why the action should not be struck off. b) O34 R3 - Failure to appear may have the court to dismiss action or struck out defence, or adjourned it to another date. c) O34 R4 - Parties may appear in person or represented by solicitor. - Judge may give direction to the proceedings of the trial in regard to the action brought such as time of trial, number of witness, and others. d) O34 R7 - Failure to comply may have the court to granted JID to the defaulting party.
  18. 18. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Enforcement of Judgment - When there is failure or refusal to comply with court judgment, it is necessary to be enforced. - Limitation period for the enforcement is 12 years as provided by Limitation Act S6(3). Writ of Seizure and Sale governed by O47 a) Immovable property. - O47 R6 provide that immovable property will be seized which prohibiting the judgment debtor from transferring, charging or leasing the property (also called prohibitory order). - A copy of such order shall be served to both judgment creditor and debtor. - The order is only to be effective within 6 months and be extended on special circumstances. - There may be no double prohibitory order be made against the same immovable property. - O47 R7 provides that there shall be no sale until the expiration of 14 days from the registration of prohibitory order. - Particulars and condition of sale shall be drawn up by sheriff or by the judgment debtor’s solicitor and be submitted for approval by judge. - The judgment debtor may apply to postpone the sale in order that he may raise amount leviable under the writ by charge or lease. If only the judge is satisfied there is reasonable ground, he may postpone the sale. b) Movable property - S3 of Debtors Act provides that writ of seizure and sale must be supported by affidavit. - O47 R4 any movable property may be seized, and shall have any transaction of such property be it sale, gift, mortgage, or otherwise be void. - O47 R5 provides that creditor may request to withdraw the seizure, and the seizure, however, shall not be re-issued, but the creditor may apply for fresh writ of seizure and sale to be issued.
  19. 19. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Judgment debtor summons - Judgment debtor summons is governed by S4 of Debtors Act. - It is utilized for discovery of the assets of the judgment debtor. - Judge may order the debtor to pay the judgment debt in one-lump sum or by installments. - Republic of Costa Rica v Strousberg where it was stated that; a) Examination under this rule of judgment debtor is off the severest kind. b) All question fairly pertinent and properly asked with a view to ascertained i. What debts are owing, ii. From whom they are owing. iii. Must give all necessary details to enable judgment creditor to recover money. - This principle is well entrenched in the O48 of RHC 1980. - Furthermore provides that the notice of this order must be served personally on judgment debtor.
  20. 20. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Enforcement of money judgment a) Garnishee proceeding i. Definition. - Garnishee is the judgment debtor’s debtor. - Garnishor is the judgment creditor. - Order shall be made for garnishee to pay money to court instead of judgment debtor for the satisfaction of judgment creditor. ii. Condition - The amount of money must be certain or it may be set aside by virtue of Hong Kong Shanghai Bank v Goh Su Liat. - O49 R1 provides that the garnishee must be in the jurisdiction of the court. iii. Procedure – show cause stage & further consideration stage. - O49 R1,2,3 – show cause stage a) Order for garnishee to appear before court to show cause why he should not pay the judgment creditor the debt due from him to the judgment debtor. b) The application must be supported by affidavit stating garnishor’s belief that garnishee is within the jurisdiction of court and is indebted to judgment debtor. c) The order to show cause must be served to garnishee at least 7 days before the time appointed for further consideration of the matter. d) The order must also be served to judgment debtor unless the court provide otherwise. - O49 R4, 5, 6 – further consideration stage. a) Order for garnishee may be made absolute if garnishee did not attend the further consideration stage, or dispute the debt claimed to be due by him to the judgment debtor. b) Syarikat Seng Lian v Roxy Malaysia provide that the court may order trial if the garnishee dispute his liability. c) The court may alternatively order the trial of the matter (liability of garnishee) before the Registrar. d) If the garnishee stated that a third party has charge upon the matter(debt), the court may compel the third party to appear in court to state the nature and particulars of his claims upon the debt.
  21. 21. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee b) Charging Order O50 R2 - Court may impose interest which judgment debtor is beneficially entitled. - The type of securities in which the Charging Order may be imposed applies to government stock, stock of any registered company under any written law, or any dividend. Procedure for Charging Order O50 R3 - by ex parte summons supported by affidavits a) Identifying the judgment or order to be enforced. b) Specifying the securities which the judgment creditor sought to impose charge. c) Stating the deponent belief that the judgment debtor is beneficially entitled. Stages of procedure O50 R2 - Show cause stage. - The charging order at the first instance be an order to show cause, specifying time and place for further consideration of the matter and charge is imposed until that time in any event. O50 R6 - The order unless sufficient to cause contrary, makes charging order absolute with or without modifications. - Or if it appears to court it should not be made absolute, may discharge the order. Effect of charging order - O50 R5 which provides that there shall be no disposition by judgment debtor of his interest against the creditor after charging order is affected.
  22. 22. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Police Investigation  Prevention power of police (Part XII of CPC) - S103 – police officers are authorized to prevent seizable offence by all lawful means. - S104 – police shall take steps to prevent seizable offence upon receiving information of it. - S105 – police may arrest a person who appear to him is about to commit seizable offence without Magistrate’s order or warrant.  First Information Report (FIR) - Also known as complain to police/ police report. - Crime investigation usually starts with FIR but by virtue of Emperor v Khwaja Nazir Ahmad the FIR is not a condition precedent to start investigation.  Objectives & Function of FIR - In Hasib (1972), Supreme Court of India states that FIR function are a) To set criminal law in motion. b) To obtain information in regard to the alleged criminal activities. - Chang Min Tat J in Tan Cheng Kooi v PP states that; a) FIR is not a substantive piece of evidence. b) But it can be used to support or contradict a statement of a person. - Section 108A provides that FIR once certified, is admissible as an evidence.  Information of offence - Is governed by Section 107 (1) Must reduced in writing (3) Information given shall be deemed to be given at police station regardless of places, and where practicable, shall record particulars of informant, and be reduced in writing. (4) Police officer is under duty to receive information of crime in any part of Malaysia. - Omission to mention particulars in FIR a) Lee Ah Seng v PP – discrepancies between FIR & testimonial evidence was among the reason the court set aside the appellant conviction. b) PP v Fong Chee Cheong – following Khwaja Nazir Ahmad¸FIR is not a condition precedent to start investigation, thus, failure to reduce FIR in writing is not a ground to throw the case, but will cause the FIR to be inadmissible as evidence and may only be used to impeach the credit of person making FIR. c) Pendakwara Raya v Ismail bin Atan where court held that if a report is not FIR, it is not admissible under as evidence under Section108A.
  23. 23. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee  Procedure of FIR for non seizable offence - Governed by Section 108 (1) If police officer does not wish to investigate, he must refer the complainant or informant to the Magistrate. (2) If he wants to investigate, he must obtain Order to Investigate from PP. (3) Any police officer below the rank of Sergeant may investigate but does not have the power to arrest without warrant in seizable offence. - PP v Seridaran – failure to obtain Order to Investigate from PP shall render the investigation illegal and all charges brought under it shall be a nullity. - PDRM v Cheong Mei Cheng Audrey – power to arrest is only given to officer ranked Sergeant and above.  Procedure of FIR for seizable offence - Governed by Section 109 (1) Police officer ranked Sergeant and above may commence investigation without Order to investigate from PP. (2) Police officer below rank of Sergeant that commences the investigation of seizable offence shall not affect the validity of proceedings of the offence. - Section 110(1) - May delegate the investigation to his subordinate to proceed with the investigation. - If the information received are not of serious nature, or have not sufficient ground to proceed with investigation, may not investigate but must provide report stating reason not commencing investigation subjected to Section 110(2)  When investigation cannot be completed within 24 hours - S117(1) if the accusation/information is well founded, the officer must transmit a copy of the entries in the diary, and produced the accused before Magistrate. - S117(2) the Magistrate may, if he thinks fit further impose detention; a) For offence punishable with less than 14years jail, 4 days and 3 days on 1st and 2nd application respectively. b) For offence punishable with more than 14years jail, 7 days, and 7 days for 1st and 2nd application respectively. - The police officer must enter his investigation on investigation diary on daily basis based on Section 119 of CPC.
  24. 24. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Arrest  Definition - Art 5(1) No person shall be deprived of his personal liberty save in accordance of law. - Viscount Dilhorne in Spicer v Holt defines arrest as deprivation of personal liberty regardless of legality of an arrest. - Lord Devlin in Shaaban v Chong Fook Kam define arrest wider than what was on S15 of CPC mere words or action is sufficient to constitute an arrest, and the accused should know that force may be used in event of any attempt to escape. - Mahmood v Govt of Malaysia applied definition by Lord Devlin where the action of police officer shooting and wounding the person is justified as he is under the impression the person is trying to resist the arrest by escaping from a scene in which the officer is under impression as to be a crime scene. - Section 2 of CPC defined a) Seizable offence as an offence which police may ordinarily arrest without warrant. b) Non seizable offence as an offence which police may not ordinarily arrest without warrant. - Complaint is defined as an allegation of offence whether in writing or oral form.  Types of arrest - Arrest with warrant a) S5 of Subordinate Court Act, provide Penghulu, Magistrate, Session Court may issue warrant. b) S38 of CPC the warrant must be in writing and signed, and shall remain in force until cancelled or executed.
  25. 25. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee - Arrest without warrant a) Police officer & Penghulu I- S23 of CPC may arrest without warrant any person for seizable offence against whom reasonable complaint is made, or against whom credible information has been issued, or against whom reasonable suspicion exist. II- Tan Kay Teck v AG – objective test is to be used in determining reasonableness of a complaint. III- Hashim b Saud v Yahaya b Hashim – credible information is information that is reliable or can be believed. IV- Shaaban v Chong Fook Kam – reasonable suspicion depends on the fact of the case and is up to the court to decide. Was applied in Mahmood v Govt of Malaysia V- S24 of CPC provide that police officer and penghulu may demand the name and address of the person committing non seizable offence, and may arrest and brought to magistrate if such person refuse to give name and address or give a false name and address. VI- S25 furthermore provide that the person arrested by penghulu shall, be brought to nearest police officer or nearest police station to be re-arrested. b) Private person I- S27 of CPC a person may arrest, a person who in his view commits a non bailable and seizable offence and without unnecessary delay, produce him to the nearest police officer or police station. II- PP v Sam Hong Choy court held that “in his view” means in his presence or within his sight that he should be certain that the person being arrested is the offender based on the close proximity. He however cannot arrest base on suspicion or information. III- John Lewis v Timms court held that without unnecessary delay is not applicable in this case, as the delay was because the person arresting is giving a chance to answer allegation of theft. c) Magistrate or Justice of Peace I- S30 empower a magistrate and JoP to arrest person committing offence in his presence within his local jurisdiction. II- S31 provide that only magistrate may authorize or arrest at any time for whose arrest he is competent at the time & circumstances to issue warrant.
  26. 26. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Arrest & Right  Arrest - S15 a) Arrest is made by touching the body of a person with the purpose to seize him unless there is a voluntary submission, and a police officer is authorized to use any means necessary to affect the arrest without causing death. - However, Lord Devlin in Shaaban gave a wider meaning to the definition of arrest and how it is made. - S112 a) Police officer may examine a person for his statement in a police investigation for the facts and circumstances of the case, and the statement, where possible, shall be taken down in writing and signed or affixed with thumb print of the maker of statement. - S113 a) The statement in obtained in the course of police investigation may not be used as evidence except; i- The court may, in the interest of justice, direct the statement made be used to impeach the credit of the witness. ii- The accused may use his own statement during the course of investigation as evidence to support his defence.  Right of an arrested person a) Right to be produced before Magistrate. I- Art 5(4) of FC – must be produce without unnecessary delay within 24 hours II- S28 of CPC – also provide 24 hours exclusive time of journey to be produced to Magistrate.
  27. 27. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee b) Right to be informed ground of arrest. I- Art 5(3) – ground of arrest must be informed as soon as may be. II- S28A – ground of arrest must be informed as soon as may be. III- Christie v Leachinsky provides that if the reason of arrest was withheld, it would amount to false imprisonment until the ground of arrest is informed. The case furthermore, laid down guideline governing the right to be informed of ground of arrest. Police officer does not need to inform the ground of arrest: i. If the arrested person knows the general nature of the alleged offence for which he is arrested. ii. If the person arrested himself makes it practically impossible to inform him. c) Right to legal counsel. I- Art 5(3) – he shall be allowed to consult and defend by counsel. II- S28A – police shall allow the arrested person to consult with legal practitioner. III- Ooi Ah Phua v OCCI Kedah/Perlis where court held that the onus is on the police to deny legal representation on the ground that it may encourage fabrication of stories. d) Right against wrongful arrest and detention I- PP v Ong Kee Seong where court stated that a person has the right to defend himself or property to an unlawful arrest. II- Tan Kay Teck v AG where court held that a person may bring civil action for unlawful arrest. However, if the mistake is a genuine and reasonable, by virtue of Tan Eng Hoe v AG, damages may not be granted. III- S364 of CPC allows a person that is illegally detained to apply for habeas corpus. IV- In Saw Kim Hai v R, the court held a person may only claim damages from wrongful arrest, but it will not affect the court jurisdiction to try him.
  28. 28. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Bailment  Definition a) Bail - Yusof Mohamed v PP – bail is a form of security taken from a person as a guarantee to appear on a fixed date before court for trial. b) Bond - S173A & S294A provides bond is an instrument binding on a person who executes it whether to be of good behavior or to appear in court.  Type of offences a) Bailable offences - S2 of CPC define it as an offence being shown bailable in the 1st Schedule of CPC - S387 provides it that accused is entitled to bail as of right for bailable offence. - Mohd Jalil v PP where court held word “shall be released on bail” in S387 is mandatory thus, means as of right. - Maja anak Kus provides that right of bail is subjected to remand order. And in such cases, S117 shall supersedes S387. b) Non bailable offences - S2 of CPC define non bailable offences as any other offences aside from offences being shown bailable in the 1st Schedule in CPC. - S388 grant of bail for non bailable offences is at the discretion of court. c) Unbailable offences - Offence which bail is not allowed and is outside the power of court. Mostly for offence under Dangerous Drug Act, Essential (Security Cases) Regulation, Firearms (Increased Penalties) Act. - Last paragraph of 1st Schedule in CPC provide that offence punishable with less than 3 years or fine only is bailable while punishable with more than 3 years or death is non bailable. - However, the maxin of generalibus specialia non derogant where general things do not derived from special things, thus, if a specific provision provides for bail then it would supersedes the last paragraph of 1st Schedule as was illustrated in the case Chew Siew Luan.
  29. 29. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee  PP v Wee Swee Siang – factors to consider for grant of bail. 1) Reasonable ground to believe accused is guilty. 2) Nature and gravity of seriousness of offence. 3) Seriousness of the punishment. 4) Danger of breach of bail. 5) Accused character and status. 6) Danger of offence being repeated if bail is granted. 7) Danger of witness being tampered if released on bail. 8) Opportunity to prepare for defence. 9) Long period of detention between date of charge and trial.  Bail and condition - PP v Dato Mat court cannot impose condition on bail for bailable offence except stating amount and sureties as the bail is as of right. - PP v Dato Balwant Singh provides a) The purpose of bail is to secure attendance in court during the affixed date for trial. b) However, it may be inferred in S388 that the grant of bail for non bailable offence is under the discretion of court. c) In this case, as the accused was an old man and sick, the grant of bail is in line with the wording of S388. d) The discretionary power of granting of bail implies that the court may also impose reasonable condition with the grant of bail. e) The type of condition imposed with bail in this case was: I- To surrender firearms and all license relating thereto to police. II- To surrender all passport. III- To report to police once in 2 weeks. IV- To remain indoors at 6p.m until 8a.m V- Not to present in open public places or functions. VI- Not allowed to leave KL and PJ without leave of court - Wong Kim Woon v PP provides that court may revoke bail if accused breached the fundamental bail term. - But the accused must first be given an opportunity to be heard as to why the bail should not be revoked. - Zulkiflee bin Haji Hassan v PP provides that bail is not a punishment but only a security to secure attendance in court, thus it should not be excessive and thus, the court reduce the amount of bail in this case.
  30. 30. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Charge  Meaning of “charged with an offence” - R v Humayoon Shah – charge is a notice to the accused which must be conveyed with sufficient clearness and certainty which the prosecution will prove against him, and which he have to defend against.  Forms of charge - S152 provided that a charges must have a) Offence which have been committed b) If the law give a specific name to the offence, may refer to such name if not, must be defined as to give the accused sufficient notice of the accused sufficient notice of things he was charged for. c) The law that created the offences d) The punishable section of law. e) May add previous conviction to aggravate the sentencing factor. - May use Illustration (a) of S152 of CPC - PP v Wahab bin Abdullah – court held that charged prepared in Malay though statutory provision is in English is not defective as the function of a charge is to inform accused. - S153 provided that the charges shall contain particulars such as time, place and person in relation of offence. If the offence is related to dishonest misappropriation of money, specifying the gross amount of money is sufficient dates between which the offence is alleged to be done. It is not needed to specify the exact sum of money and date.  Separate charge - S163 laid down the general rule that a person shall be charged separately for every distinct offence. - S164, S165 and S170 provided for the exception. - S164 provided that three offences of same kind within twelve months may be charged together. - Sheikh Hassan v PP where the accused was alleged to committed 23 offences of criminal breach of trust and s court held that the offences can be joined in one charge provided that the first and last offences time period is not more than one year - S165 provides that court may try for more than one offence in one trial if the offences is as result from one series of act.
  31. 31. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Powers of PP  Power of PP in Art 145(3) a) To institute proceeding - Long bin Samat v PP - Where court held PP had discretionary power to institute a proceeding under any charge he deems fit and court cannot interfere with the PP’s discretionary power, thus, the trial in Magistrate’s Court in this case is not a nullity. - PP v Lee Tin Bau - Where court held that a judge cannot amend the charge as it is the discretionary of PP to institute the proceeding under any charge suitable. b) To conduct proceeding - S376 provides PP shall have control and direction of all criminal prosecution under CPC. - S377 provides conduct of prosecution shall be by PP - PP v Datuk Haji Harun - Abdulcadeer J states that to conduct means to lead, guide & manage. - Jayaraman v PP limits the power of PP where court shall have the power to order for the joint or separate trial. c) To discontinue proceedings - S254 provides PP may decline to prosecute - S254A the discontinued charge may be reinstate as it does not amount to acquittal. - Poh Cho Ching v PP where court held that PP is empowered to discontinue criminal proceedings. Though discontinuance does not mean being acquitted.  S378 provides only PP, senior DPD, or DPP may appear in criminal appeal.
  32. 32. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Summary Trial  Summary trial introduction - The summary trial is governed in S173 of CPC. - Tengku Abdul Aziz v PP is where the court held that the Summary trial also applies in Session Court though the section only expressly mentions Magistrate Court.  Procedure – S173 (a) - The accused shall first be brought before the court or may appear in court. - The charged shall be read and explained to the accused. - S174 provided that prosecution does not need to open case, and may immediately produce evidence. - The court is under duty to ensure the accused understand the charged read to him as illustrated in Fong Hung Sium v PP where the difference in dialect between the accused and interpreter cause the accused to unable to understand the charges read to him. - Fong Siew Poh v PP provided that each charge is to be read and explained to each accused if there is more than one accused. - The court will then ask the accused whether he pleads guilty or claims trial.
  33. 33. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee  Plea of guilty (PG) – S173 (b) I- Before the plea is recorded a) Under this proviso, the court is under duty to ensure the accused understand the nature and consequences of the plea of guilty. b) Before the plea of guilty is recorded, the court is under duty to make sure the accused understand that;-  Lee Weng Tuck v PP – i. He will not be given a trial. ii. Maximum sentence may be passed on him.  Gabriel v PP i. He is not allowed to appeal against conviction. ii. (S305 however provide that he may appeal against the sentence) c) The court must also ensure that the plea of guilty is unreserved, unqualified, and unequivocal for court to accept the PG.  PP v Cheah Chooi Chuan i. Where court held that the accused plea of guilty was not unreserved, unqualified, and unequivocal and should be rejected as it the PG is as a result of an occurrence of an event.  PP v Munandu i- Where court held the plea of guilty when the accused was drunk is not unequivocal and therefore, should be rejected.  Seah Ah Chiew v PP i. Where court held that as accused did not understand the nature of the plea nor intended to admit the offence charged without qualification therefore, the plea of guilty by the accused was not unqualified and therefore, should have been rejected. d) No plea of guilty through counsel i- PP v Leng Chow Teng & Lee Weng Tuck v PP ii- Where both of this case held that the accused himself must plead guilty or claim trial and such plea of guilty must not be made through his counsel
  34. 34. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee II- After plea of guilty a) After plea of guilty, the court will first ask the prosecution to provide the brief case of the facts before recording the plea of guilty as in the case of Palan v PP. b) The court held that it is the duty of trial judge to take evidence of the nature of the charge when the accused plead guilty. c) It was stated in Abdul Kadir v PP that the brief facts of the case depend on the length and seriousness of the charge. III- Withdrawal of plea of guilty a) PP v Sam Kim Kai provides that an accused can only change his plea if he has valid reason. b) PP v Jamalul Khair provides that the accused can withdraw his plea of guilty even at mitigation. IV- Joint pleas a) Fong Siew Poh v PP provide that in case where there are two or more accused, the charge against each accused shall be read and explained separately and so does the plea of guilty. b) Subramaniam v PP where if there is more than one charge for an accused, the charge must be read and explained separately and pleas of guilty for each charge must be recorded separately. V- Determination of guilt a) Maung Min Aung Plea of guilty itself does not constitute conviction. A conviction only occurs after the court accept the plea of guilty which amount to the determination of guilt.
  35. 35. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee  Plea of not guilty (PNG) S173 (c) - This proviso provide that if the accused refuse or does not plead guilty, the court shall proceed to take all evidence as may be produced in support of the prosecution and shall held a trial for the case. - S173 (e) is the commencement of the trial whereby, a) Prosecution and witness are called. b) There shall be examination in chief, cross examination, and re-examination of witness by the prosecution and accused - S173 (f) if court finds that the prosecution is unable to made a prima facie case against the accused, shall record an order of acquittal for the accused. - S173 (h) where the prosecution has made a prima facie case against the accused shall call upon the accused to enter his defence. a) Prima facie case under this proviso is define as where prosecution has adduced credible evidence in which if left unanswered or unrebutted by the accused may warranted to a conviction. - S173 (ha) provided that the accused in entering his defence shall be read by court of his options; a) Give sworn evidence from witness box b) Give unsworn evidence from the dock c) To remain silent. - S173 (m) provided that In general, the burden of proof is on the prosecution to convict the accused. a) If the prosecution has proved beyond reasonable doubt, the accused will be convicted b) If the prosecution failed, the accused will be acquitted.
  36. 36. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee  Conviction - Once convicted:- a) Accused is given a chance to mitigate. I- Hashim Yeop Sanji J in Raja Izzudin stated that plea in mitigation is one of the important process of proper working of justice. II- Mitigating factors  Age of offenders Tukiran v PP- court opined of lighter sentenced for the teenager. PPv Teh Ah Cheng – court give strict sentence regardless of young age.  Record of offender PP v Mark Koding – court give lighter sentence for first offender. PP v Oo Leng Swee – court give full punishment as death penalty is mandatory for drug trafficking and as deterrence and taking account of public interest  Plea of guilty Sau Soo Kim v PP – court considered plea of guilty and reduced one third of punishment. Ismail Rasid v PP – court does not considered plea of guilty as the offence of rape and incest should not be discounted for the purpose of public interest.  Gap between offences Soosainathan v PP – where court will view the gap between conviction as mitigating factor rather than aggravating factor. The longer the period, the greater the effect.
  37. 37. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee  Condition I – Provocation – PP v Ahmad Khairul court will consider public interest and safety versus the individual’s interest and the plea of guilty. II – Drunkenness – Raja Izzuddin v PP court will consider drunkenness based on the gravity of the offence.  Effects of conviction and sentence Chan Sit Hoong v PP – on family – court reduce sentence as accused have family to support. PP v Loo Choon Fatt – court will balance the interest of public and the offender.  Conduct of offender Repentance – Raja Izzudin – the accused showed that he was repentant and remorseful. Cooperation – PP v Mahanthiran – cooperation with the police in the investigation is accorded with mitigating value by court. b) After mitigation process I- Maung Min Aung v PP The conviction will be re-recorded after plea in mitigation and before sentences is passed.
  38. 38. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee c) Sentencing The court in passing out sentence will be influence by either mitigating factors or aggravating factors. If the mitigating factors is does not satisfy the court, the court may refer to aggravating factors in passing the sentence.  PP v Tan Eng Hock – prevalence I- Court imposed higher sentence considering the rampancy of the car theft offence.  PP v Safian Abdullah – use of force I- Court imposed maximum sentence as there was use of force.  PP v Jafa Daud – previous convictions I- Court enhanced the sentence as the accused had five previous convictions with similar offences as the present conviction.  Dato’ Seri Haji Harun v PP – status of accused I- Court stated the high status of offender would aggravate the sentence of offence.  Joginder Singh v PP – mode of committing the offence I- Ajaib Singh J stated that had the truth prevailed, four innocent persons might have been convicted for jail, thus, such method should be an aggravating factor for passing the sentence.
  39. 39. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee  Discharge not amounting to acquittal - S173 (f) where court shall conclude whether prosecution has made prima facie case against the accused or not. - S173 (g) provide that, the court is allowed to discharge the accused at any stage for reasons that court must record if court considers the charge is groundless. - The discharge does not amount to an acquittal. - Chu Chee Peng v PP where Ong CJ stated that, a) Section 173 is for summary trial; therefore, there is a bulk of cases to be heard. b) For such reason, if it appears to the court that the prosecution is unable to provide for a strong stand to make a prima facie case against the accused, and it is foreseeable by the judge to at last, pronounce a verdict of acquittal, may discharge the accused not amounting to acquittal. c) Such power given by S173 (g) would save the court time. d) However, Magistrate may sometime be wrong or hasty to discharge the person. e) Thus, if the magistrate is wrong in discharging the person, there would be no need to go for an appeal since the discharge does not amount to an acquittal and the charge may simply be reinstated by the prosecution. f) The requirement of the magistrate to record for the reasons of discharge not amounting to acquittal is one of the mechanisms to protect the interest of justice as it may help to detect the magistrate error in his action. - Murray J in Kuppusamy v PP stated that the earliest stages to acquit a person are after hearing all the evidence for the prosecution. The discharge not amounting to acquittal on the other hand, by virtue of S173 (g) provides that magistrate can discharge the accused at any stages of the proceedings after the trial started and must record the reason for doing so.
  40. 40. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee - Example of discharge not amounting to acquittal is not applicable. a) PP v Au Seh Chun – not applicable if prosecution only asks to postpone the case. b) PP HLS Perera – magistrate cannot discharge amounting to acquittal because; I- Does not heard the case from the prosecution. II- S173 (g) does not authorize magistrate to discharge amounting to acquittal. - Example of discharge not amounting acquittal is applicable PP v Tan Kim San – where the investigation is not yet completed, the charge is groundless as prosecution has no ground to prefer the charge. - Effect of discharge not amounting to acquittal a) Chu Chee Peng v PP where Ong CJ stated that, the charge against accused may be re-instated.
  41. 41. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Trial in High Court Trial in High Court Summary Trial Accused elect to plead guilty Section 178 (2) - The proviso is similar to the Section 173 (b) and thus, the same is applicable. - Safeguard to ensure the plea of guilty is valid and unequivocal – Lee Weng Tuck v PP: a) Accused plead guilty on his own volition. b) The court must ascertain accused understand the nature and consequences of his plea. c) The court must ascertain accused intends to admit without any qualification. - If judge is satisfied that the plea is unreserved, unqualified, and unequivocal, judge shall accept and record conviction and proceed to pass sentence. Section 173 (b) Accused plea of guilty and recording of conviction. (refer summary trial)
  42. 42. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Where accused claim trial Section 179 – Opening of case - Prosecution shall open the case by stating briefly the nature of the offence charged. - There shall be three stages of witness examination as in summary trial. Section 180 – conclusion of case for prosecution - The proviso is similar to Section 173 (f) & (h) . Section 181 – defence - Three options of defence in summary judgment is also applicable Section 182 – right of reply Prosecution has the right of reply whether accused adduced evidence or not. Section 174 - Prosecution need not open the case and may immediately produce evidence. Section 173 (f) - Court shall conclude whether prima facie case against accused is made - If no prima facie case, order for acquittal. Section 173 (h) - Court shall call the accused to enter defence if there is prima facie case against him. - Prima facie- if unrebutted or unexplained may warrant to conviction. Section 173 (ha) - Accused may; a) Give evidence as witness b) Give unsworn statement from the dock. c) Remain silent Section 174 - Prosecution shall have the right of reply when the accused had adduced evidence
  43. 43. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Section 182A – Conclusion of trial - Is similar to Section 173 (m) of summary trial. Section 183 – the court shall pass sentence according to law if accused is convicted. There is no process of DNA. All criminal trial shall only end with either conviction or acquittal, and such decision may be appeal. Section 173 (m) - If prosecution a) Proved beyond reasonable doubt, court shall find the accused guilty and may order for conviction. b) Does not proved beyond reasonable doubt, order for acquittal of the accused. ---------------------------------------------------------- ---------------------------------------------------------- --------------------------------------------------------- --------------------------------------------------------- Section 173 (g) Provide for discharge not amounting to acquittal (DNA).
  44. 44. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Plea Bargaining  Process - Is provided in Section 172C of CPC. - The accused shall make an application to court in Form 28A in which, after that, the court shall fix a date to the accused and prosecution to appear for the hearing. - The court is under duty to ensure the accused has voluntarily applied for this application of plea bargaining and shall dismiss the application should it find that the process was done involuntarily. - If the accused is unrepresented, the court shall examined the accused without the presence of the prosecution. - If the accused is represented, the court shall examine the accused in the presence of defence counsel and the prosecution. - If there is no satisfactory disposition, the court shall record such observation and have the case heard by another court. Or if there is satisfactory disposition, shall be put into writing signed by the accused, defence counsel, and the DPP. - Disposal of the application Section 172D - If there is a satisfactory disposition, the court shall dispose in two manner a) Find the accused guilty on the charge agreed and sentence the accused accordingly or b) If the plea bargaining is in relation to the sentence, sentence shall not be passed for more than half of the maximum punishment for the offence.  The process of plea bargaining is usually done in a pre-trial case management stages.
  45. 45. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee Sentencing  Retributive - R v Sargeant - The Court shall on behalf of the society shows the disapproval of the offence committed through the sentence passed. - Example is Section 302 of Penal Code which provides death penalty for murder.  Deterrent - R v Davies provides for two types of deterrent, deterrent for offenders (specific deterrent) and deterrent for potential offenders (general deterrent). - Deterrent sentence is heavy as it to prevent crime on rampant.  Rehabilitative - Raja Izzudin Shah v PP where court reduced the sentenced to a good behavior bond and a fine as the judge finds the accused had been rehabilitated through his act of remorse. - Rehabilitative sentence is usually lenient to afford the convicted the opportunity to start anew. - Will only be granted if it is beneficial for the public interest as stated in R v Ball.
  46. 46. Prepared by: Akmal Marizalee & Jamielyn Jimmy GROUP B 2010937999 Rohani Ahmad Akmal Marizalee  Type of Sentencing - Death I- Section 302 Penal Code/ Section 57 Internal Security Act. II- Exception to death penalty a) Section 275 CPC – pregnant woman b) Section 97 Child Act – child – person under 18 - Imprisonment I- Imprisonment for life – Chapter IV Penal Code II- Imprisonment for fixed period – S282 of CPC III- Imprisonmet in default of fine – S283 of CPC - Whipping I- Section 286 – Court may give direction in regard of place of executing whipping. II- Section 288 – provide for mode of executing whipping (size of rattan, maximum number of whipping). III- Section 289 – males (that is sentenced to death), any females, males age 50 and above shall not be whipped (males age 50 and above shall still be whipped if convicted of sexual offence). IV- Section 290 – the punishment of whipping is only to be executed with Medical Officer’s Certificate and the medical officer need not be present during whipping.  For mitigating and aggravating factor- refer summary trial section.