WEEK 1- INTRODUCTION
4th Feb - 8th Feb 2013
by
Assoc. Prof. Dr. Abdul Rani bin Kamarudin
Lecturer , Ahmad Ibrahim Kulliyyah of Laws
(Legal Practice Department)
IIUM
• Substantive & Adjectival laws
• Due Process
• CPC is a general legislation
• Reception of Common law.
• Directory or Mandatory

Substantive & Adjectival laws 1
• Substantive laws define rights & duties, whether the commission or the omission of an act is
right or wrong.
• Law of contract or torts are private substantive laws.
• Penal Code, Traffic Act – they are public substantive laws.
• Procedures and evidence laws are adjectival laws.
• Without adjectival laws, rights or obligation counts to nothing i.e. rights or obligation cannot
be enforced by plaintiff and prosecutor, as the case may be.
• How do authorities enforce an obligation (commission or omission) or plaintiff enforces his
rights?
• On evidence - can you prove your case by adducing secondary (documentary) evidence?
• On evidence - can you prove your case by adducing hearsay (oral) evidence?
• In criminal cases, the quantum of proof is BRD, in civil cases, it is BRD.
• For undergraduates passing grade is C, for Master it is B (70 marks), for PhD is it c, B or higher?
• Prosecutor cannot obtain a conviction or plaintiff cannot obtains his rights because their
evidence sulk.
• Why Dato Seri Anwar Ibrahim was acquitted in PP (Azizan) v Dato Seri Anwar Bin Ibrahim?

Substantive & Adjectival laws - 2
• On procedure - can you adduce primary evidence in badminton court (established by the
Ministry of Youth and Sport), in Moot Court established by IIUM (a public university
established under University and University Colleges Act), or you adduce in court
established according to law?
• On procedure – in which court do authorities enforce an obligation or plaintiff enforces
his rights (cause of action)?
• Children Court (Child Act), Court Martial (Armed Forces Act), Special Court (Act?),
Syariah Court (Act?), Subordinate Courts i.e. Penghulu, Magistrates & Session courts.
(Subordinate Courts Act ); High Courts, Court of Appeal, Federal Court (Courts of
Judicature Act); Native courts (?). Can Syariah Court be established under the Road
Traffic Act?
• On Procedure - do you adduce primary evidence before a law lecturer or before
magistrates/ judges appointed according to law?
• To which court and judges do you go to enforce obligations (Commission or omission)
or rights (cause of action)?
• Adjectival laws thus inform you how to go about to obtain your rights or to enforce an
obligation.
• Laws – written and unwritten; Acts (Federal), Enactments (States), Ordinances (YDPA)

Arbitration (private judge)
– privacy, the tribunal is chosen by the
parties, informal, [speed and
efficiency, lower costs?]
Court
(public judge)
Mediation – private, voluntary,
and if agreement is reached, it
is enforceable as a contract.
(parties are the sovereign)

DUE PROCESS - 1
• Article 5(1) Federal Constitution - No person shall be deprived of his life or personal
liberty save in accordance with law.
• Consequences for acting not according to law?
• An offence
• PP v Tan Sri Rahim Nor
• Altantuya’s/ aminurasyid case – the police officers were charged;
• Disciplinary action (domestic Inquiry);
• Demotion (cold storage), dismiss from employment, loss of pension etc;
• Civil suit for damages.

DUE PROCESS - 2
• Article 5(1) Federal Constitution - No person shall be deprived of his life or personal
liberty save in accordance with law.
• In accordance with law -
http://www.bharian.com.my/bharian/articles/BalumangsadipukulpolisdapatRM90_000/Article
Balu mangsa dipukul polis dapat RM90,000
2010/06/17
KUALA LUMPUR: Balu kepada seorang pekerja kilang yang mati dipukul anggota polis dalam
sekatan jalan raya di Puchong dekat sini, lapan tahun lalu, menerima pampasan RM90,000
daripada kerajaan.
• In accordance with law -
http://www.bharian.com.my/bharian/articles/4penjenayahditembakmatiselepassamunEXCOPah
ang/Article
4 penjenayah ditembak mati selepas samun EXCO Pahang
2010/07/05
KUANTAN: Empat penjenayah ditembak mati selepas menyamun rumah EXCO Belia dan
Sukan Pahang, Datuk Wan Adnan Wan Mamat, di Pantai Selamat di sini kira-kira jam 3 pagi
tadi.
Polis akan mengadakan sidang media pagi ini untuk memberikan butiran kejadian itu.

DUE PROCESS – 3 (Damages)
• Article 5(1) Federal Constitution - No person shall be deprived of his life or personal liberty
save in accordance with law.
• Not in accordance with law -
• http://www.bharian.com.my/bharian/articles/BekastahananISAdibayargantirugiRM3_3juta/Arti
cle
• Bekas tahanan ISA dibayar gantirugi RM3.3 juta
• 2010/06/10
• PUTRAJAYA: Mahkamah Tinggi hari ini memberikan gantirugi am dan teladan RM3.3 juta
kepada ahli perniagaan, Badrul Zaman P S Mohamed, susulan kesilapan menahannya di
bawah Akta Keselamatan Dalam Negeri (ISA) 1994 kerana didakwa terbabit mengeluarkan
permit palsu dan pasport kepada pekerja asing. Hakim Datuk Mohd Hishamudin Mohd Yunus,
berkata mahkamah bersetuju dengan Badrul bahawa penahanannya tidak mematuhi undang-
undang dan tidak mengikut perlembagaan. Beliau berkata, mahkamah turut
mempertimbangkan reputasi Badrul yang turut terjejas sebagai ahli perniagaan. – Bernama

DUE PROCESS – 3 (damages)

CPC - A General Legislation
• Section 3 CPC – “…subject however to any written law for the time being in force….”
• PP v Chiew Siew Luan [1982] 2 MLJ 119 (FC) at pg 12 where Raja Azlan Shah CJ (as
His Majesty then was) held that the granting of bail for offences under the
Dangerous Drugs Act 1952 must be construed in accordance with the Act and not
the CPC.
• In CPC, offence is bailable and non bailable. In DDA, no discretion for giving bail for
offences punishable with imprisonment for more than 5 years.
• Open Court: section 7 CPC; In camera: section 12 Child Act 2001;
• A child has to be prosecuted in the Children Court established under the Child Act.
• Internal Security Act (now Security Offences Act); Immigration Act etc. Mental
Health Act provide for no bail;
• Search warrant and Arrest. Protection to embassies and consulates through specific
laws- Dato Seri Anwar took refuge in Turkish Embassy >Act 595 CONSULAR
RELATIONS (VIENNA CONVENTION) ACT 1999

Reception of Common Law
• Section 5 CPC
• Written laws of the country is to be applied. Why?
• PP v Ong Lai Kim – one way mirror for Identification Parade;
• PP v Dato Seri Anwar Bin Ibrahim – statement from the dock;
• see section 173 CPC on option to (i) give evidence on oath (ii) remain
silence (iii) statement from the dock.
• Section 435 CPC: Is common law cases such as Ghani v Jones & Chic
Fashion applicable?

CPC – Mandatory or Directory - 1
• Topic 4: Mandatory or Directory
• Section 121, 173(a) & (b), 419, 420, 421 & 422 CPC.
• PP v Wong Pang Fin [1997] 2 MLJ 151.
• PP v Chung Tshun Tin & Ors [2008] 1 MLJ 559 - A plea of guilty or to claim trial must be taken
individually or separately.
• Public Prosecutor v Chung Tshun Tin & Ors [2008] 1 MLJ 559
• “That you all, on the 18th July, at about 11.40p.m., at the room number 1017, Tang Dynasty Hotel, 5 in
the District of Kota Kinabalu, in the State of Sabah, in furtherance of common intention did traffic in a
dangerous drug, to wit 1599.9 grammes of Methamphetamine and that you all have thereby
committed an offence under Section 10 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable
under Section 39B(2) of the same Act read together with Section 34 of the Penal Code.”
• The criminal act as alleged by the prosecution is trafficking.
• The definition of trafficking in section 2 of the DDA 5 1952 states:
• “trafficking” includes the doing of any of the following acts, that is to say, manufacturing, importing,
exporting, keeping, concealing, buying, selling, giving, receiving, storing, administering,
transporting, carrying, sending, delivering, procuring, supplying or distributing any dangerous drug.”
• The charge in this case does not set out the ingredients of the offence under section 2 of DDA 1952.
A fatal error, taking into consideration that the accused are facing a charge relating to capital
punishment. The law in this respect is captured in sections 152 to 154 of CPC.

CPC – Mandatory or Directory - 2
• Topic 4: Mandatory or Directory
• See Yew Poo v PP [1949] 1MLJ 131
• The appellant was charged with robbery and possession of revolver, offences
punishable under sections 392 (robbery) and 397 (armed robbery) of the Penal Code.
It was held that the duplicity in the charge (see section 163 CPC) was one that could
have proceeded in one trial and was merely an irregularity which can be cured by
section 422 provided such duplicity did not prejudice the accused as to occasion a
failure of justice. The appellate court noted that the trial judge was oblivious that
there were two distinct offences in the charge and had not considered the evidence
in respect of each alleged offence separately. The learned trial judge had in fact
made one single finding and imposed one punishment for two offences. Though the
duplicity was merely an irregularity, it had caused confusion in the mind of the
learned judge, and the appellate court said that it was impossible to say that a failure
of justice had not been occasioned. The appellate court set aside the conviction,
quashed the sentence, and a retrial ordered.

CPC – Mandatory or Directory - 3
• Topic 4: Mandatory or Directory
• PP v Margarita B. Cruz [1988] 1 MLJ 539
• I have time and time again exhorted DPPs and Magistrates to read the provision in
the Act which creates the offence especially in regard to unfamiliar charges, and to
scrutinize the charge which the accused is charged. …. The Magistrate should have
called for the statute from the prosecuting officer or from the library to check the
provision under which the charge was made. If the law is not read, how would the
magistrate then be able to find out the essential ingredients of the charge are, how
he or she able to explain the charge to the accused? It behoves all magistrates and
Presidents to scrutinize the charges, to read the provision of the statute under
which the charge is framed, to understand the constituent ingredients of the charge,
to know the nature of the punishment and appreciate the gravity of the charge. If the
charge is defective or badly framed, the magistrate should point out the defects and
requests the prosecuting officer to amend the charge as the accused should truly
understand the nature of the charge he is asked to plead.

Role of the Police- 1
• Police Act 1967
• Section 3(3) The Force shall subject to this Act be employed in and throughout Malaysia (including the territorial waters thereof)
for the maintenance of law and order, the preservation of the peace and security of Malaysia, the prevention and detection of
crime, the apprehension and prosecution of offenders and the collection of security intelligence.
• Section 20(3) Without prejudice to the generality of the force-going provisions or any other law, it shall be the duty of a police
officer to carry out the purposes mentioned in section 3(3); and he may take such lawful measures and do such lawful acts as may
be necessary in connection therewith, including-
• (a) apprehending all persons whom he is by law authorised to apprehend;
• (b) processing security intelligence;
• (c) conducting prosecutions;
• (d) giving assistance in the carrying out of any law relating to revenue, excise, sanitation, quarantine, immigration and
registration;
• (e) giving assistance in the preservation of order in the ports, harbours and airports of Malaysia, and in enforcing maritime and
port regulations;
• (f) executing summonses, subpoenas, warrants, commitments and other process lawfully issued by any competent authority;
• (g) exhibiting information;
• (h) protecting unclaimed and lost property and finding the owners thereof;
• (i) seizing stray animals and placing them in a public pound;
• (j) giving assistance in the protection of life and property;
• (k) protecting public property from loss or injury;
• (l) attending the criminal courts and, if specially ordered, the civil courts, and keeping order therein; and
• (m) escorting and guarding prisoners and other persons in the custody of the police

Role of the Police- 2
• Police Act 1967
• 24. Power of police officers to inspect licences, vehicles, etc.
• (1) Any police officer may-
• (a) stop and detain any person-
• whom he sees doing any act or who is in possession of any thing; or
• whom he has reasonable grounds for suspecting is doing any act or is in possession of any thing;
• for which a licence, permit or authority is required under the provisions of any law in force, for the purpose of requiring such person to produce such
licence, permit or authority;
• (b) stop and search without warrant any vehicle or vessel which he has reasonable grounds for suspecting is being used in the commission of any
offence against any law in force:
• Provided that such vehicle or vessel shall not, subject to the provisions of subsection (4), be detained longer than is reasonably necessary to complete
such search.
• (2) Any person who fails to produce a licence, permit or authority under subsection (1)(a) when called upon by a police officer so to do may be arrested
without warrant unless he gives his name and address and otherwise satisfies the police officer that he will duly answer any summons or other
proceedings that may be taken against him.
• (3) Any person who fails to obey any reasonable signal of a police officer, requiring any person to stop any vehicle or vessel under the provisions of
subsection (1) or who obstructs any police officer in the execution of his duty being exercised under the provisions of that subsection, shall be guilty of
an offence under this Act and any police officer may, without warrant, arrest any such person unless he gives his name and address and otherwise
satisfies the police officer that he will duly answer any summons or other proceedings that may be taken against him.
• (4) Any police officer may cause any vehicle or vessel, which he has reasonable grounds to suspect has been used in the commission of an offence
against any law in force or to be evidence of the commission of any such offence, to be moved to the nearest Police District headquarters or other
convenient place, and the Officer in Charge of such Police District may there upon cause such vehicle or vessel there to be detained, pending enquiries,
for a period not exceeding forty-eight hours, or if, within that period, there are commenced proceedings in respect of any such offence in which the
vehicle or vessel is liable to forfeiture under any law or may properly be produced in evidence, until the final determination of those proceedings:
• Provided that the Officer in Charge of such Police District may, notwithstanding the provisions of this subsection, direct the release of any such vehicle
or vessel where he is satisfied that the owner or person in charge of such vehicle or vessel will duly produce such vehicle or vessel before the court when
required, and for such purpose may require such owner or person to execute such bond or deposit such security as he may deem reasonable.

Role of the Police - 3
• Penal code - CHAPTER X
• OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC SERVANTS
• 172. Absconding to avoid service of summons or other proceeding from a public servant.
173. Preventing service of summons or other proceeding, or preventing publication thereof.
174. Non-attendance in obedience to an order from a public servant.
175. Omission to produce a document to a public servant by a person legally bound to produce such document.
176. Omission to give notice or information to a public servant by a person legally bound to give notice or
information.
177. Furnishing false information.
178. Refusing oath when duly required to take oath by a public servant.
179. Refusing to answer a public servant authorised to question.
180. Refusing to sign statement.
181. False statement on oath to public servant or person authorised to administer an oath.
182. False information, with intent to cause a public servant to use his lawful power to the injury of another
person.
183. Resistance to the taking of property by the lawful authority of a public servant.
184. Obstructing sale of property offered for sale by authority of a public servant.
185. Illegal purchase or bid for property offered for sale by authority of a public servant.
186. Obstructing public servant in discharge of his public functions.
187. Omission to assist public servant when bound by law to give assistance.
188. Disobedience to an order duly promulgated by a public servant.
189. Threat of injury to a public servant.
190. Threat of injury to induce any person to refrain from applying for protection to a public servant.
•

Role of the Police - 4
• Section 3(3) Police Act -The Force shall subject to this Act be employed in
and throughout Malaysia (including the territorial waters thereof) for the
• (i) maintenance of law and order,
• (ii) the preservation of the peace and security of Malaysia,
• (iii) the prevention and detection of crime,
• (iv) the apprehension and prosecution of offenders and
• (v) the collection of security intelligence.
• Section 20(3) Police Act - Without prejudice to the generality of the force-
going provisions or any other law, it shall be the duty of a police officer to
carry out the purposes mentioned in section 3(3); and he may take such lawful
measures and do such lawful acts as may be necessary in connection
therewith –

Role of the Police – Make inquiries (stop & detain),
search, seizure, arrest, lawful custody & investigate
• Search
• Seizure – section 435 CPC
• Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219
“It (arrest) does not occur when he stops (detain) an individual to make inquiries.” (Lord Devlin).
• Police may stop drivers of vehicles whether they possess valid driving licence to drive the
vehicle, whether the car is legitimately on the road (road tax) under the Road Traffic Act. Can
the driver with a 2B or D licence drives a lorry?
• Taxi for taxi permit, lorry with logs, sands whether the logs/ sands were legally taken with a
permit and conditions of the permit. Can any driver take a passenger and charge him a fee?
• Passengers and driver may be asked to show their identity card or passport (for an alien) – see
section 23(1)(e), 23(1)(h), 24 cpc. Immigration Act, National Registration Act.
• 23(1)(d) CPC - any person in whose possession anything is found which may reasonably be
suspected to be stolen or fraudulently obtained property and who may reasonably be
suspected of having committed an offence with reference to that thing;
• Drugs (Dangerous Drugs Act), Arms (Arms Act), Sword (Corrosive and Offensive Weapons
Act), endangered species (snakes, tigers, turtles and turtles’ eggs), smuggled things (Custom
Act), smuggling in money etc.

Role of the Police – Contempt agst a public servant
• http://malaysianlaw.my/news/village-chief-fined-rm50-for-insulting-policeman-23742.html;
• Village Chief fined RM50 for insulting Policeman
• KUALA KANGSAR, Aug 28 (Bernama) -- A village chief was fined RM50 or three days' jail in
default by the Magistrate's Court here today for insulting a policeman about two years ago.
• Mohd Ridzuan Asit, 44, who was appointed a village chief by the then Pakatan Rakyat
government in Perak and was also the chairman of the village chiefs appointed by the
opposition coalition, had initially claimed trial to the charge when it was read out to him before
Magistrate Noordura Mohamed Din.
• However, 15 minutes later he changed his plea to guilty and admitted committing the offence
against Cpl Umar Saari of the Kuala Kangsar police station in front of Hari-Hari departmental
store here at 5.55pm on Dec 9, 2010.
• According to the facts of the case presented by Deputy Public Prosecutor Naidatul Athirah
Azman, Umar was on duty with other police personnel when Mohd Ridzuan approached and
questioned him about a summons he had issued him some months ago.
• He had argued that the summons was unjustified as other motorists had committed the same
violation but had not been taken action against by either police on patrol or traffic police.
• Source: Bernama Date of Publication :Tuesday, 28 August 2012

Role of the Police – Contempt agst a public servant
• http://siemens-melayumaju.blogspot.com/2013/09/suspek-kes-ugut-ketua-polis-pulau.html
• Friday, September 27, 2013
• Suspek kes ugut Ketua Polis Pulau Pinang diberkas...Sendiri Buat Sendiri Tanggung
• GEORGETOWN: Polis menahan seorang lelaki berusia 28 tahun yang dipercayai terbabit
dengan kes ugutan terhadap Ketua Polis Pulau Pinang, Datuk Abdul Rahim Hanafi melalui
sistem pesanan ringkas (SMS) yang dihantar Isnin lalu. Difahamkan, suspek bekerja sebagai
pengawal keselamatan ditahan di sekitar kawasan Klang, Selangor awal pagi tadi. Suspek
dibawa ke Mahkamah Majistret Georgetown dan direman selama tiga hari bermula hari ini.
Sebelum ini, Abdul Rahim dilaporkan menerima SMS ugutan yang dihantar melalui telefon
bimbitnya ketika berada di pejabatnya di Ibu Pejabat Polis Kontinjen (IPK) Pulau Pinang kira-
kira jam 9 pagi Isnin lalu.
Difahamkan, kiriman SMS oleh individu yang tidak dikenali itu mengandungi ayat ugutan
kerana tidak berpuas hati apabila lima rakannya ditembak polis bulan lalu. Kandungan SMS
yang diterima Abdul Rahim adalah ‘Hello kepala Penang, mau kasi ingat, u sudah ambil saya
punya kawan lima orang, u jangan ingat u the best, u jaga u punya body, tak dapat u, u punya
kawan saya ambil. Jaga-jaga’. Abdul Rahim membuat laporan sehari selepas menerima ugutan
itu di Ibu Pejabat Polis Daerah Timur Laut. Sementara itu, Ketua Polis Derah Timur Laut,
Asisten Komisioner Gan Kong Meng ketika dihubungi mengesahkan mengenai tangkapan itu.

Role of the Police : What is Arrest?
Section 23(1) & (2), 24, 103, 105 CPC.
• Shaaban & Ors v Chong Fook Kam & Anor [1969] 2 MLJ 219
“An arrest occurs when a police officer states in terms that he is arresting or when he uses
force to restrain an individual concerned, it also occurs when by words or conduct he makes it
clear that he will, if necessary, use force to prevent the individual from going where he may
want to go. It does not occur when he stops (detain) an individual to make inquiries.” (Lord
Devlin)
• Jayaraman v PP [1982] 2 MLJ 306 Fed Court – no arrest as they were merely told not to leave.
• R v Inwood – no magic formula, only the obligation to make it plain to the suspect by what is
said and done that he is no longer a free man.
• PP v Rosyatimah – an arrest occurs if the person is being watched or guarded to prevent his
escape – Compare this to Shaaban (arrest does not occur if the police stop a person for making
inquiries)
• See also section 17, 111 & 112 CPC (distinguishing arrest from mere detention/ stop & search)
• PP v Shee Chin Wah – when did the arrest occurs?
• Read cases such as PP v Kang Ho Soh etc

Role of the Police : Arrest (suspicion, complaint & credible
information), reasonable force & pursue.
Section 23(1)(a) CPC (reasonable suspicion, credible information & reasonable complaint).
• Seizable, non-seizable, bailable and non-bailable.
• Mahmood v Govt of Malaysia
• Abdul Rahman v Tan Jo Koh
• Yong Moi Sin
• Aminurasyid (PP v Jenain & Anor) – the Policemen were held not guilty for murder.
• Lahad Datu militants – licence to kill (section 15(3) CPC or relevant laws.
• Pursue & reasonable force (15(2), 15(3), 26 (pursue a fugitive), 29 (release of person arrested /
under lawful custody)), 32 (escape from lawful custody –recapture ) CPC.
• http://www.bharian.com.my/bharian/articles/4penjenayahditembakmatiselepassamunEXCOPah
ang/Article
• 4 penjenayah ditembak mati selepas samun EXCO Pahang
2010/07/05
• KUANTAN: Empat penjenayah ditembak mati selepas menyamun rumah EXCO Belia dan Sukan
Pahang, Datuk Wan Adnan Wan Mamat, di Pantai Selamat di sini kira-kira jam 3 pagi tadi.
Polis akan mengadakan sidang media pagi ini untuk memberikan butiran kejadian itu.
• Section 27 & 29 CPC. Interpretation Act 1967 – Oooi Ah Phua (24 hours).

Role of the Police : Arrest (suspicion, complaint & credible
information), reasonable force & pursue.
• http://www.thestar.com.my/News/Nation/2013/09/23/Cop-bludgeoned-to-death.aspx
• Monday September 23, 2013 MYT 7:13:54 PM
• Cop found bludgeoned to death, last seen chasing suspect
• BY FARIK ZOLKEPLI
• MALACCA: A police corporal was bludgeoned to death in the midst of Ops Cantas
Khas held in Taman Teknologi Cheng here.
• It is learnt that Kpl Zal Azri Abdul Somad, 31, was chasing after a 17-year-old suspect
before he was found dead, with critical head injuries at about 8.30am Monday.
• Kpl Zal Azri, from the Crime Intelligence Unit (D4), is believed to have been
bludgeoned with a brick while in pursuit of the suspect.
• Police had earlier detained three suspects at a factory here for stealing scrap metal
but one managed to escape.
• Inspector-General of Police Tan Sri Khalid Abu Bakar said police managed to detain
the suspect in Krubong at about 10.50am.

Role of the Police : Symbol or logo of Police authority.

Role of the Police : History

Private Arrest / Rights of Arrested Person - Habeas
Corpus
Section 27 CPC.
• Seizable, non-bailable, in his view, without unnecessary delay
• PP v Sam Hong Choy
• john Lewis v Tims
• Habeas Corpus (section 365 CPC)
• http://www.bharian.com.my/bharian/articles/BekastahananISAdibayargantirugiRM3_3j
uta/Article
• Bekas tahanan ISA dibayar gantirugi RM3.3 juta - 2010/06/10
PUTRAJAYA: Mahkamah Tinggi hari ini memberikan gantirugi am dan teladan RM3.3
juta kepada ahli perniagaan, Badrul Zaman P S Mohamed, susulan kesilapan
menahannya di bawah Akta Keselamatan Dalam Negeri (ISA) 1994 kerana didakwa
terbabit mengeluarkan permit palsu dan pasport kepada pekerja asing.
Hakim Datuk Mohd Hishamudin Mohd Yunus, berkata mahkamah bersetuju dengan
Badrul bahawa penahanannya tidak mematuhi undang-undang dan tidak mengikut
perlembagaan. Beliau berkata, mahkamah turut mempertimbangkan reputasi Badrul
yang turut terjejas sebagai ahli perniagaan. – Bernama

Habeas Corpus
Section 27 CPC.
• Seizable, non-bailable, in his view, without unnecessary delay
• PP v Sam Hong Choy
• Tim Lewis
• Habeas Corpus (section 365 CPC) - Article 5 Federal Constitution/ ISA 1960
• http://www.bharian.com.my/bharian/articles/BekastahananISAdibayargantirugiRM3_3j
uta/Article
• Bekas tahanan ISA dibayar gantirugi RM3.3 juta - 2010/06/10
PUTRAJAYA: Mahkamah Tinggi hari ini memberikan gantirugi am dan teladan RM3.3
juta kepada ahli perniagaan, Badrul Zaman P S Mohamed, susulan kesilapan
menahannya di bawah Akta Keselamatan Dalam Negeri (ISA) 1994 kerana didakwa
terbabit mengeluarkan permit palsu dan pasport kepada pekerja asing.
Hakim Datuk Mohd Hishamudin Mohd Yunus, berkata mahkamah bersetuju dengan
Badrul bahawa penahanannya tidak mematuhi undang-undang dan tidak mengikut
perlembagaan. Beliau berkata, mahkamah turut mempertimbangkan reputasi Badrul
yang turut terjejas sebagai ahli perniagaan. – Bernama

Habeas Corpus - 2
• Detention must be illegal. A prisoner duly convicted and imprison cannot seek for
this remedy, or not because that his right to counsel has been denied or that the
condition of the lock-up or prison is unsatisfactory.
• Yeap Hock Seng v Minister of Home Affairs, Malaysia
It is a high prerogative writ of summary character for the enforcement of the
cherished civil rights of personal liberty and entitles the subject of detention to a
judicial determination that the administrative order adduced as warrant for the
detention is legally valid, in the sense that it is pursuant to a valid statutory
authority and to test whether the detention proceedings are…….. a mere sham,
nothing but an empty form
e.g. Detention of certified Drug Dependants to undergo compulsory treatment
and rehabilitation in treatment and rehabilitation centres. Detention of persons in
detention centres who entered the country illegally pending their deportation to
their country of origin.
• Habeas corpus is quasi criminal since it is commenced with a writ supported by
affidavit in accordance with the civil procedures.

Habeas Corpus - 3
• Rajoo s/o Ramasamy v IGP [1990] 2 MLJ 87, the detainee made his representation to
YDPA on 22nd May 1988 but the Advisory Board’s recommendation to His Majesty was
8 months later i.e. 27th March 1989 and not within 3 months as required by the
Emergency (Public order and prevention of crime) Ordinance 1969. The extension to
submit the recommendation to YDPA should have been procured from YDPA within
the three months not on 28th February 1989 which was after the expiry date. Detention
was held to be ultra vires the Federal Constitution.
• Articles to read
• Kamarudin, A.R. (i) The relevancy of preventive detention (MLJ);
• Kamarudin, A.R. (ii) The rights of an arrested person under the Dangerous Drugs
(Special preventive Measures) Act 1985: Are the Safeguards Real? (MLJ).
• Kamarudin, A.R. (2002) “The Legal Aspect on the control and prevention of dangerous
drugs misuse: Comparative study between UK and Malaysian laws.” Phd in law thesis
(Exeter University: UK). Read the chapter on preventive detention.

Rights of Arrested Person
• Grounds of arrest – 28 & 28 CPC
• Not to be detained for more than 24 hours as a general rule unless is produced before
a magistrate for authorisation for further detention – Re Detention Sivarasa, section
28 & 117, 119 CPC. Investigation diary to be adduced b4 magistrate.
• Not more than 7 or 14 in police custody (lock up – see Lock up Rules) days as the
case may be;
• At the end of the detention period, to be either released (with or without police bail) or
be charged (with or without court bail);
• Right to communicate with counsel or friend; Ooi Ah Phua’s case
• Right to remain silent – common law

Criminal Jurisdiction of Subordinate Courts
• Subordinate Courts Act 1948
• section 3(2) - There shall be established the following Subordinate Courts
• for the administration of civil and criminal law in Peninsular Malaysia:
• (a) Sessions Courts; (b) Magistrates’ Courts; and (c) Penghulu’s Court.
• Penghulu Courts
• 95. (1) The criminal jurisdiction of a Penghulu’s Court shall be restricted to the trial of
offences of a minor nature which are specifically enumerated in his Kuasa and which
can be adequately punished by a fine not exceeding that which, under section 96, a
• Penghulu’s Court may award.
• (2) The criminal jurisdiction of a Penghulu’s Court shall also be restricted to the trial
of charges against persons of an Asian race.
• 96. A Penghulu’s Court may pass any sentence authorized by law not exceeding a fine
of twenty five ringgit.

Criminal Jurisdiction of Subordinate Courts
• Subordinate Courts Act 1948
• 2nd Class Magistrate
• *88. A Second Class Magistrate shall only have jurisdiction to try offences for which
the maximum term of imprisonment provided by law does not exceed twelve months’
imprisonment of either description or which are punishable with fine only:
Provided that if a Second Class Magistrate is of the opinion that in the circumstances
of the case, if a conviction should result, the powers of punishment which he
possesses would be inadequate, he shall take the necessary steps to adjourn the
case for trial by a First Class Magistrate.
• 1st Class Magistrate
• 85. Subject to limitations contained in this Act a First Class Magistrate shall have
jurisdiction to try all offences for which the maximum term of imprisonment provided
by law does not exceed ten years imprisonment or which are punishable with fine
only and offences under sections 392 and 457 of the Penal Code.

Criminal Jurisdiction of Subordinate Courts
• Subordinate Courts Act 1948
• 2nd Class Magistrate
• *88. A Second Class Magistrate shall only have jurisdiction to try offences for which
the maximum term of imprisonment provided by law does not exceed twelve months’
imprisonment of either description or which are punishable with fine only:
Provided that if a Second Class Magistrate is of the opinion that in the circumstances
of the case, if a conviction should result, the powers of punishment which he
possesses would be inadequate, he shall take the necessary steps to adjourn the
case for trial by a First Class Magistrate.
• 89. A Second Class Magistrate may pass any sentence allowed by law—
• (a) not exceeding six months’ imprisonment;
• (b) a fine of not more than one thousand ringgit; or
• (c) any sentence combining either of the sentences aforesaid.

Criminal Jurisdiction of Subordinate Courts
• Subordinate Courts Act 1948
• 1st Class Magistrate
• 85. Subject to limitations contained in this Act a First Class Magistrate shall have
jurisdiction to try all offences for which the maximum term of imprisonment provided
by law does not exceed ten years imprisonment or which are punishable with fine
only and offences under sections 392 and 457 of the Penal Code.
• *86. A First Class Magistrate shall have jurisdiction to hear and determine criminal
appeals by persons convicted by a Penghulu’s Court situate within the local limits of
his jurisdiction.
• 87. (1) A First Class Magistrate may pass any sentence allowed
• by law not exceeding—
• (a) five years’ imprisonment; (b) a fine of ten thousand ringgit;
• (c) whipping up to twelve strokes; or
• (d) any sentence combining any of the sentences aforesaid:

Criminal Jurisdiction of Subordinate Courts
• Subordinate Courts Act 1948 - 1st Class Magistrate
• Provided that where, by any law for the time being in force, jurisdiction is given to the
Court of any Magistrate to award punishment for any offence in excess of the power
prescribed by this section, a First Class Magistrate may, notwithstanding anything
herein contained, award the full punishment authorized by that law.
• Cheong Ah Cheow v PP accused was sentenced to 18 months and fine 20, 000 under
section 6(3)(a) Betting Ordinance 1953 for an offence of acting as a bookmaker.
Section 18(3) of the Ordinance states “Any punishment authorised by this Ordinance
maybe imposed by a Magistrate Court, notwithstanding that the same be in excess of
the punishment which such court is ordinarily empowered to impose.
• 87(2) Notwithstanding subsection (1), where a First Class Magistrate has convicted
any person and it appears that, by reason of any previous conviction or of his
antecedents, a punishment in excess of that prescribed by subsection (1) should be
awarded, then the First Class Magistrate may award the full punishment authorized by
law for the offence of which the person has been convicted and shall record his
reason for so doing.
• PP v Tengku Hitam – (during trial) transfer the case to session court under 177 CPC
• PP v Abdul Wahab – (after conviction) section 87(2) is appropriate to apply.

Criminal Jurisdiction of Subordinate Courts
• Subordinate Courts Act 1948 - Sessions Court –
• 63. A Sessions Court shall have jurisdiction to try all offences other than offences
punishable with death.
• 64. A Sessions Court may pass any sentence allowed by law other than the sentence
of death.
• PP (Saiful) v Dato Seri Anwar Bin Ibrahim – section 377B Penal Code (20 yrs prison)
• Transfer to High Court under PP certification under section 418A CPC (power of PP).
• Native Courts (Criminal Jurisdiction) Act 1991
• 2. The native courts constituted in the States of Sabah and Sarawak under or by virtue
of any written law are hereby conferred jurisdiction to try and any offence which,
under or by virtue of any written law, is punishable with imprisonment for a term not
exceeding two years or with a fine not exceeding *five thousand ringgit or a
combination thereof or to deal with the offender in any other manner in which, under
or by virtue of any such law, they may from time to time be empowered to deal:
• Provided that such jurisdiction shall not be exercised in respect of such offence
which is also an offence under the Penal Code[Act 574].

Criminal Jurisdiction of Subordinate Courts
• Child Act 2001 –
• Section 11 established the Children Court for the purpose of hearing, determining or
disposing of any charge against a child
• Section 11 (5) - A Court For Children shall have jurisdiction to try all offences except
offences punishable with death.
• Section 83(4) - A charge made jointly against a child and a person who has attained
the age of eighteen years shall be heard by a Court other than a Court For Children
• Section 12 & 15 – trial is held in camera and is confidential. Under section 7 CPC, trial
is held in open court.
• Court Martial – Armed Forces Act

Criminal Jurisdiction of Syariah Courts
• Criminal Jurisdiction of Syariah Courts –
• Syariah Courts (CriminalJurisdiction) Act 1965.
• 2. The Syariah Courts duly constituted under any law in a State and invested with
jurisdiction over persons professing the religion of Islam and in respect of any of the
matters enumerated in List II of the State List of the Ninth Schedule to the Federal
Constitution are hereby conferred jurisdiction in respect of offences against precepts
of the religion of Islam by persons professing that religion which may be prescribed
under any written law:
• Provided that such jurisdiction shall not be exercised in respect of any offence
punishable with imprisonment for a term exceeding
• three years or
• with any fine exceeding five thousand ringgit or
• with whipping exceeding six strokes or
• with any combination thereof.

Criminal Jurisdiction of Syariah Courts
• Criminal Jurisdiction of Syariah Courts –
• E.g. The Administration of Islamic Law (Federal Territories) Act 1993 and applies only
to the Federal Territories of Kuala Lumpur and Labuan.
• Constitution of Syariah Courts
• 40. (1) The Yang di-Pertuan Agong, on the advice of the Minister, may by notification
in the Gazette constitute Syariah Subordinate Courts for the Federal Territories at
such places as he considers fit.
• (2) The Yang di-Pertuan Agong, on the advice of the Minister, may by notification in
the Gazette, constitute a Syariah High Court for the Federal Territories.
• (3) The Yang di-Pertuan Agong, on the advice of the Minister, may by notification in
the Gazette constitute a Syariah Appeal Court for the Federal Territories.
• Article 121(1A) Fed Consti –

Criminal Jurisdiction of Superior Courts
• Courts of Judicature Act 1964 – High Court Original Jurisdiction
• 22. (1) The High Court shall have jurisdiction to try—
• (a) all offences committed—
• (i) within its local jurisdiction;
• (ii) on the high seas on board any ship or on 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;
• (iv) by any person on the high seas where the offence is piracy by the law of nations; and
• (b) offences under Chapter VI of the Penal Code [Act 574], and under any of the written laws
specified in the Schedule to the Extra-Territorial Offences Act 1976 [Act 163], or offences under
any other written law the commission of which is certified by the Attorney General to affect the
security of Malaysia committed as the case may be,—
• (i) on the high seas on board any ship or on any aircraft registered in Malaysia;
• (ii) by any citizen or any permanent resident on the high seas on board any ship or on any
aircraft; or
• (iii) by any citizen or any permanent resident in any place without and beyond the limits of
Malaysia.
• (2) The High Court may pass any sentence allowed by law.

Criminal Jurisdiction of Superior Courts
• Local limits of jurisdiction of subordinate court & local jurisdiction of High Court
• Section 3 CJA - “local jurisdiction” means—
• (a) High Court in Malaya, the territory comprised in the States of Malaya, namely, Johore,
Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang,
• Perak, Perlis, Selangor, Terengganu and the Federal Territory* of Kuala Lumpur; and
• (b) High Court in Sabah and Sarawak, the territory comprised in the States of Sabah,
Sarawak and the Federal Territory of Labuan,
• including, in either case, the territorial waters and the air space above those States and the
territorial waters; Sova Sdn Bhd v kasih Sayang Realty
• Section 2 CPC – local limits of jurisdiction means limit of the ordinary administrative
district in which the court house is situated e.g .Magistrate Ampang, Magistrate Selayang
etc – see section 121 CPC & also section 59(2) & 76(1) SCA 1948.
• PP v Wong Pang Fin
• Section 26 CJA - The appellate criminal jurisdiction of the High Court
• Section 31 - criminal revisionary power of High Court
• Section 35 – supervisory power of the high court.
• Court of Appeal & Federal Court

Public Prosecutor – Prosecutorial Powers
• Read “Mediation in Criminal Cases? By Abdul Rani Bin Kamarudin in chapter 18 of a book
“Mediation in Malaysia: Law & Practice”.
• Article 145 (3) of the Federal Constitution - the Attorney General shall have power
exercisable at his discretion to institute, conduct or discontinue any proceedings for an
offence in any court other than the Syariah Court, native court & the court-martial.
• Section 376(1) & (2) CPC - the Attorney General, who shall be the Public Prosecutor, shall
have the control and direction of all criminal prosecutions & proceedings under the Code.
• Repco Holdings Bhd v PP, Gopal Sri Ram JCA sitting as a High court Judge held that
section 126(2) of the Securities Commission Act 1993 providing that any prosecution
under the Act may be conducted by the Registrar or by any person he authorised in
writing or by any officer authorised in writing by the Chairman of the Commission as ultra
vires Article 145(3) of the Federal Constitution.
• PP v Dato Seri Anwar Ibrahim Ibrahim [2000] 2 MLJ 487 – charged for 4 amended charge
under the Emergency (Essential Powers) Ordinance No. 22 of 1970: Anti Corruption Act
1997, Prevention of Corruption Act 1961, Anti corruption Agency Act 1971. Federal court
held that it is not for the court to speculate – the entrenched law is that the Ag has
unfettered discretion. He was sentenced to 6 years imprisonment on each of the charge to
run concurrently from the date of conviction.

Public Prosecutor – Prosecutorial Powers -2
• Public Prosecutor To Act With Fairness And Sagacity
• In the case of Johnson Tan Han Seng, Suffian L.P. explained why it was not prudent
for the Attorney-General to charge three persons under the same Act because their
circumstances or background may not necessarily be the same. The Lord President
said that it would suffice to charge A who had delayed to renew his licence to
possession of a gun under the Arms Act 1960. However, a person (B) who had no
licence to possess the same, and has a criminal record, it would not suffice to have
B charged under the Arms Act 1960, rather under the Firearms (Increased Penalties)
Act 1971. Likewise, a person (C) who had no licence to possess firearm, having
criminal records and who had killed and terrorised people and witnesses, should he
(C) also be charged under the Arms Act simply because his fellow criminal
colleague A is charged under the Arms Act 1960, or under the Firearms (Increased
Penalties) Act 1971 like B, or under the Internal Security Act 1960? His Lordship held
that the choice is entirely up to the Attorney General.

Public Prosecutor – Discretion -1
• The Attorney General Tan Sri Gani Patail explained;
• We look for 90 per cent chances of conviction, not prima facie – then we’ll go to court.
When we prosecute, we depend on evidence on paper. We all know witnesses will say
this and that. All witnesses have given accounts of different things. The best we can
do is produce evidence of what is given to us. But witnesses may change the story.
We don’t fix people and we don’t coach the witness on what to say. We are purely
professional and very fair. The fact that we lose a case does not automatically prove
that the prosecution is just charging people for no reason. That is wrong. We charge a
person based on investigation papers. Once we are convinced, we go after them. But
in court, the story may change. Or the story may have some other evidence which was
not made available to us – things might come up. And for these reasons alone, the
person can be acquitted. A person may be acquitted based on just one reasonable
doubt. I on the other hand, have to prove to a very high degree – beyond reasonable
doubt! So there are cases where people think that the person is guilty, but I cannot
think of him as guilty. If it is expected that every case I bring to court I win all the time,
then there;’s no need for a judge. …

Public Prosecutor – Discretion in Prosecution -2
• The principle of the law is that all discretion must be exercised judiciously. I must
have reason and grounds, otherwise I will resign from my post for the simple reason
that I have not exercised my powers properly. There is no such thing as dropping a
case. The moment there is enough evidence, I want to charge a person. Then I look
at the public interest, at the national interest and at other interest. Then I exercise
that discretion to charge or not. …The decision to charge is not my alone. Every
time in big cases, there is a group of us. There are at least two or three of my
officers sitting with me, giving their ideas, and we go on consensus.… The only way
is to have a collective decision, where everybody sits down, and discusses the
matter thoroughly, openly, transparently and seriously. …I have only said that that
the moment the case is referred to me, and if there is a case, I will charge. You do
not presume and you do not assume. Unitl I see the investigation papers, with all the
facts, only then would I say “yes”. …. For all I know, 10 might come to me, and if I
see they all have a case, I will charge all 10. If it is 100, I will charge 100. ….I don’t
make a distinction between …”big fish” and “small fish” – everybody is equal before
the law. ..If papers are sent to me, then we look at them, and if there is a case, we
charge. If there is insufficient investigation, then we push it back ….for further
investigation. …

Public Prosecutor – Discretion in Prosecution -3
• On prosecution, I’m not answerable to anybody. I only answer to my
conscience and the Law. The Constitution says the powers are within
us, the only thing is exercise it properly. I do not seek instruction –
there’s no instruction given. I’ll be the first one to go out of this office
if I have to be instructed on what to do. ....As the A-G, I am the Chief
Legal Adviser to the government. …On civil matters and advisory
matters, I’m just like any lawyer in town. I give my advice. If the
Government wants to follow, they will follow. If they don’t want to,
then they will give instructions. I have to comply with them. .. I do not
have the powers to investigate. I can only look at a file and decide
whether to charge or not. And if I am not happy, I will then ask the
police, and say that I don’t have a case at the moment, if you
investigate further, then I can re-look it.

Public Prosecutor – To Transfer/ Discontinue Case
• section 418A of the CPC - the discretion to transfer the case to the High Court.
• PP (Saiful) v Dato Seri Anwar /Pendakwa Syarie v Dato Asri (X Mufti Perlis)
• Not to appeal - PP v Razak Baginda & 2 Ors (section 254 & 307 CPC)
• To discontinue - PP v Toha & 3 Ors (section 254 CPC)
The case was transmitted to the High Court, all the four accused were charged for
possession under section 39A(2) and not for trafficking under section 39B(1) of the
Dangerous Drugs Act 1952. The charge was read to all of them and they claimed
trial. The Deputy Public prosecutor then asked for a short mention date not a trial
date to explore the possibility for any one of the accused offering to plead guilty and
the charge against the remaining accused withdrawn. On the next mentioned date
the accused requested for a short adjournment to consider `the offer’ with their
counsel, and another short mention date was given. On the mention date, the 3rd
accused pleaded guilty after he has been made to understand the nature and
consequences of his plea. The Deputy Public Prosecutor then informed the court
that the charge against the three remaining accused would only be withdrawn after
the 3rd accused who pleaded guilty had been convicted and sentenced.
• Plea bargaining & case management.

Public Prosecutor – Conduct of Proceedings of Courts
from Prosecutions
• Inquiries of deaths
• The Public Prosecutor, may at any time directs the Magistrate to hold an inquiry,
• Judicial Power Is Not Subjected To Public Prosecutor
• it does not include the regulation of criminal procedure or of the jurisdiction of the
courts or the power or discretion of the courts. It s not empowered to have the case tried
contrary to section 121 CPC or contrary to the criminal jurisdiction of the courts.
Therefore, an offence committed in Kuala Lumpur should be tried in Kuala Lumpur, and
not in Johore (section 121 CPC).
• Likewise, in murder case, the case must be tried before the High Court, and not at the
subordinate courts.
• In Jayaraman v PP, it was held by the Judge that under section 170 of the CPC, it is for
the court (as it thinks fit) and not the Public Prosecutor to decide whether the trial should
be conducted jointly or separately.
• Amendment of the charge (158 CPC rest with the judge and not the PP) – read Public
Prosecutor v Peter Kong [2007] 5 MLJ 567; PP v Erwin Hardy [2007] 9 CLJ; Public
Prosecutor v Chung Tshun Tin & Ors [2008] 1 MLJ 559;
• Adjournment, relevancy & admissibility of evidence.

Public Prosecutor – Alter Ego (sanction & consent)
• Section 376(3) read with section 376 (4) of the CPC provide that the the Deputy
Public Prosecutor may exercise all or any of the rights and powers vested in or
exercisable by the Public Prosecutor, or as empowered by the Code or any other
written law except any rights or powers expressed to be exercisable by the Public
Prosecutor personally.
• (i) PP v Mohamed Halipah (ii) PP v Datuk Hj Dzullkifli, it was held that the Deputy
Public Prosecutor is the alter ego of the Public Prosecutor.
• Sanction(CPC) or consent (other written laws) to be obtained from the PP.
• Fresh consent is not necessary if the amendment to the charge is minor
• In PP v Lim Boon Hock & Ors [1982] 1 MLJ 340
the amendment to the charge relates to the reduction in the weight of the drugs. It
was held that the original consent for drug trafficking is still valid and applicable. No
fresh consent is needed. It was also held that even if there is a need for fresh
consent, the consent of the Public Prosecutor is implicit if the prosecution is done
by a Deputy Public Prosecutor. Dangerous Drugs Act 1952 requires consent of PP
for charge of trafficking.

CHARGE – 1 What is the charge?
• Read
• The Supreme Court’s Timely Reminder on how to Frame Criminal
Charges by Mohd. Akram b. Shair [1992] 4 CLJ viii;
• PP v Chung Tshun Tin & Ors [2008] 1 MLJ 559;
• PP v Peter Kong [2007] 5 MLJ 567.
• Section 152 – 153 CPC
It is a fundamental principle of criminal procedure that the accused
should be informed with certainty and accuracy, the exact nature of the
charge brought against him, otherwise he may be severely prejudiced in
his defence [(section 173(a) & (b)]. He must be told precisely not only the
act which he is alleged to have committed that constitute the offence but
also the law that he is said to have infringed.
• Article 5 of the Federal Constitution – to be informed grounds of
arrest!

CHARGE – 2: What is the charge?
• Public Prosecutor v Chung Tshun Tin & Ors [2008] 1 MLJ 559
• “That you all, on the 18th July, at about 11.40p.m., at the room number 1017, Tang
Dynasty Hotel, 5 in the District of Kota Kinabalu, in the State of Sabah, in
furtherance of common intention did traffic in a dangerous drug, to wit 1599.9
grammes of Methamphetamine and that you all have thereby committed an offence
under Section 39B(1)(a) of the Dangerous Drugs Act 1952 and punishable under
Section 39B(2) of the same Act read together with Section 34 of the Penal Code.”
• The criminal act as alleged by the prosecution is trafficking. For trafficking, the
definition of trafficking in section 2 of the DDA 5 1952 states:
“trafficking” includes the doing of any of the following acts, that is to say,
manufacturing, importing, exporting, keeping, concealing, buying, selling, giving,
receiving, storing, administering, transporting, carrying, sending, delivering, procuring,
supplying or distributing any dangerous drug.”

CHARGE – 3: What is the charge?
• Public Prosecutor v Chung Tshun Tin & Ors [2008] 1 MLJ 559
• The charge does not specifically say what the alleged act of trafficking the
prosecution is relying on. From the submission, the prosecution is relying
on “selling”. Clearly the 2nd and 3rd 15 accused, from the evidence, were
not selling anything to the agent provocateur. At the most, somebody was
attempting to sell the drug through the 1st accused. Thus, in this case, there
cannot be a common intention to sell, when the 2nd and 3rd accused are not
shown by evidence to have any interest or proprietary rights in the goods for
sale. Further, the evidence is negative to allege that the 1st accused had
proprietary right to sell.
• The charge in this case does not set out the ingredients of the offence under
section 2 of DDA 1952. A fatal error, taking into consideration that the
accused are facing a charge relating to capital punishment.
• The law in this respect is captured in sections 152 to 154 of CPC i.e. the
accused should know what is he charged with.

CHARGE – 4
The charge to follow wordings of the statute
• In Public Prosecutor v Syed Bakri [1955] MLJ xvii Thomson J observed:
• I have repeatedly emphasised that in framing charges prosecution officers should
adhere as closely as possible to the wording of the statute constituting the offence
which is charged and that Magistrates should be at pains to see that this is done. If it
is done, the prosecution knows what they have to prove and the accused person
knows what is charged against him. If it is not done, then there is the danger of a
muddle of the sort that has come to light in this case...
• The accused in Syed Bakri, was convicted on a charge of altering an entry in his
identity card respecting his age, under Regulation 18(2)(a) of the Emergency
(Registration Areas) Regulations 1948 which states:
• 18(2) Any person who:
• (a) ... knowingly has in his possession an identity card containing any false entry, or
unauthorised alteration ... shall be guilty of an offence and liable to imprisonment for
a term not exceeding ten years.

CHARGE – 5
The charge to follow wordings of the statute
• The charge to which the accused had pleaded guilty and convicted was framed as
follows:
• That you on 2 December 1954 at about 12.30 p.m. at Sungai Siput North, in the State
of Perak, being the holder of an Identity Card No. Pk. 157722 were found to have
made an alteration of an entry of the identity card to wit, by altering the age in the
identity card and that you thereby committed an offence under Reg. 18(2)(a) and
punishable under Reg. 20A ER (RA) 1951.
• Thomson J observed that the charge was flawed because it omitted any reference to
two of the essential ingredients, as contained in the definition of the offence in
Regulation 18(2), namely:
• (a) knowingly being in possession of the identity card, and
• (b) that the alteration was unauthorised.
• The accused therefore had been charged with, and had pleaded guilty and convicted
of an offence unknown to the law.

CHARGE – 7
The charge to follow wordings of the statute
• Peh Swee Chin SCJ in Loo Keck Leong - as a rule, prosecutors ought to follow as
closely as possible the statute in framing their charges.
• The charge to which the respondent had pleaded guilty was:
• That you on 27 April 1983, at about 10.45 a.m. at Shop No. 203, Sungai Pinang Kecil,
Pangkor, in the District of Manjung, in the State of Perak were found in possession
of films to wit, 1095 Video-tapes (as annexure attached), which had not been marked
under the Provision of s. 9(2) or 9A(2) of the Films (Censorship) Act 1952, and that
you have thereby committed an offence punishable under s. 15(1) of the Films
(Censorship) Act 1952 (Revised 1971).
• When the case came up before Edgar Joseph Jr. J the question was whether the
charge upon which the Respondent had been convicted disclosed an offence known
to the law. Before answering this the learned Judge referred to s. 12 sub-section (1)
of the Films (Censorship) Act, 1952 ("the Act") as amended vide Act A 490/1980)
which reads as follows:
• Any person who exhibits, sells, hires or distributes or causes to be exhibited, sold,
hired or distributed any film:
.

CHARGE – 8
The charge to follow wordings of the statute
• s. 12 sub-section (1) of the Films (Censorship) Act, 1952 ("the Act") as amended vide
Act A 490/1980) which reads as follows:
• Any person who exhibits, sells, hires or distributes or causes to be exhibited, sold,
hired or distributed any film:
• (a) in respect of which a certificate has not been issued under s. 9(2) or 9A(2);
• (b) in respect of which the certificate issued under s. 9(2) or 9A(2) has ceased to be
valid under s. 13 or 14;
• (c) which, since the certificate was issued in respect thereof, has been altered or
tampered with in any way; or
• (d) in breach of a condition imposed under s. 25(2),
• shall be guilty of an offence and shall, on conviction, be liable to a fine not
exceeding ten thousand ringgit.
• Possession of the offending video tapes per se did not constitute an offence within
the meaning of the sub-section.15

CHARGE – 9
Date of the offence
• Section 153 CPC
• In PP (Azizan) V Dato Seri Anwar Bin Ibrahim & Anor (Sukma) the
charges specified the offences were alleged to have been committed
one night at about 7.45 pm between the months of January and March
1993 at Tivoli Villa, in the Federal Territory of Kuala Lumpur. The trial
judge Arrifin Jaka J. held that the particulars are sufficient to clothe
the charges with clarity and certainty. The charges as amended are
clear and unambiguous and as such both the accused have not in any
way misled by the charges as framed. Both the accused know what
the charges are against them. They are not in any way prejudiced by
the failure of the prosecution to state the exact date and this omission
has not occasioned a miscarriage of justice.

CHARGE – 10
section 154: manner of the offence to be stated
• In Krishnan & Anor v PP [1981] 2 MLJ 121, the Federal Court stated that the
omission to make any reference in the charge to the knowledge of the
second appellant that the first appellant had a pistol did not render the
charge against the second appellant defective. Knowledge is a matter of
inference and unless it is clear that the law requires knowledge to be stated
in the charge, its omission did not render the charge defective.
• In Osman bin Abdullah v PP [1958] MLJ 12, it was stated that in a case of
murder, the interests of justice clearly requires that the accused person
should know whether the case against him is that he himself struck the fatal
blow or whether it is that some other person struck the fatal blow but that he
was acting at the same time together with that other person and that the fatal
blow was struck in furtherance of an intention which was common to them
both. If this is not made clear, the particulars stated in the charge ‘do not
give the accused sufficient notice of the matter with which he is charged’.

CHARGE – 11
section 154: manner of the offence to be stated
• In Tan Peng Ann v PP [1949] MLJ Supp 10, the appellant was convicted on
two charges of cheating and dishonestly inducing the delivery of property in
contravention of section 420 of the Penal Code. In the 15 charges, no
particulars were alleged of the way in which the appellant deceived the
complainants. The court stated that in framing such a charge, it is necessary
to set out not merely the fact that the accused had obtained goods by
dishonest means, but also the deception which had been practised.
• Section 156-158 CPC – amendment
• In PP v Peter Kong [2007] 5 MLJ 567, PP v Chung Tshun Tin & Ors [2008] 1
MLJ 559, and PP v Erwin Hardy & Anor [2007] 9 CLJ 334 - the judge at the
close of the case for the prosecution amended the charge of trafficking
under 39B (death penalty) of the Dangerous Drugs Act 1952 to one of
possession under section 12(2) (up to 2 yrs imprisonment) of the same Act.

CHARGE – 12
section 156-158: errors and amendments
• In PP v Peter Kong [2007] 5 MLJ 567, PP v Chung Tshun Tin
& Ors [2008] 1 MLJ 559, and PP v Erwin Hardy & Anor [2007]
9 CLJ 334 –
• the judge at the close of the case for the prosecution
amended the charge of trafficking under 39B (death penalty)
of the Dangerous Drugs Act 1952 to one of possession
under section 12(2) (up to 2 yrs imprisonment) of the same
Act.
• See section 421 & 422 CPC
• Duplicity and misjoinder – see you in the next lecture.
• Attendance please!

CHARGE – Duplicity: section 163
• 163. Separate charges for distinct offences.
For every distinct offence of which any person is accused there shall be a separate charge
…
• PP v Chung Tshun Tin & Ors [2008] 1 MLJ 559
When a person is charged with a criminal offence, he must be told precisely not only the act which
he is alleged to have committed that constitute the offence but also the law that he is said to have
infringed.
• Lee Chin Kee v PP [1933] FMSR 157
To give to the accused the precise accusation so that an accused is not embarrassed in his
plea and if he is convicted he is not left in doubt as to the offence of which he has been
convicted. The charge for “knowingly concerned in conveying or dealing in unaccustomed
goods” was bad for duplicity, an illegality which cannot be cured by section 422 of CPC.
• PP v Margarita B. Cruz [1988] 1 MLJ 539
If the charge is defective or badly framed, the magistrate should point out the defects and
requests the prosecuting officer to amend the charge as the accused should truly
understand the nature of the charge he is asked to plead.

CHARGE – Duplicity: section 163
• Yap Liow See v PP [1937] 1 MLJ 225
• The charge of driving a motor bus “recklessly or negligently in a manner that was
dangerous to the public..” contained 4 distinct offences of (i) reckless driving (ii)
negligent driving (iii) driving which was dangerous to the public and (iv) driving in a
manner that was dangerous to the public. This was a case where the appellant had
been convicted in the Magistrate Court at Kuala Pilah, Seremban, in Negeri
Sembilan.
• In allowing the appeal, it was said that a charge should contain one offence and no
more. The judge held that it was impossible for the accused to make a simple plea of
guilty for he might well realise that he had been negligent in his driving and be quite
ready to admit and plead guilty to negligence, the case may not be the same for
“reckless” and would not plead guilty to it. Further, it was held too that section 163
is a matter of substance not of form. Duplicity inevitably creates uncertainty and
embarrassment to the accused. The charge was therefore bad for duplicity, an
illegality which cannot be cured by section 422 of the Federated Malay States CPC
as it was impossible for the accused to make a simple plea. The appeal was allowed,
the conviction was set aside, and the fine paid by the appellant had to be refunded.

CHARGE – Duplicity: section 163
• PP V Mohamed Fathi Bin Haji Ahmad [1979] 2 MLJ 75
• The accused was charged in one charge with using as genuine four forged documents at
a bank which is an offence under section 471 of the Penal Code. The facts disclosed that
the offences were committed in three separate occasions, with two of the said forged
documents on the third occasion. The evidence required to prove each charge may not
necessarily be the same even though the modus operandi was the same. The judge took
notice that the only exception of one offence one charge is contained in section 153(ii) of
CPC in regard to the offence of criminal breach of trust or dishonest misappropriation of
property committed over a period of one year or less. The charge was therefore bad for
duplicity under section 163 of CPC but the duplicity is one which could have been the
subject of a separate charge, and could have been proceeded with at one trial, hence the
duplicity is only an irregularity curable under section 422 of CPC provided the accused
was not prejudiced by it and there was no failure of justice occasioned by the
irregularity. The judge held that since the accused was represented by counsel and was
fully aware that the charge was a consolidation of three amended charge which the
accused had earlier claimed trial, the accused was thus not prejudiced nor had there
been a failure of justice which is curable under section 422 of CPC despite that the
duplicity was an irregularity as decided in See Yew Poo v PP [1949] MLJ 131.

CHARGE – Duplicity: section 163
• See Yew Poo v PP [1949] 1MLJ 131
• The appellant was charged with robbery and possession of revolver,
offences punishable under sections 392 (robbery) and 397 (armed robbery)
of the Penal Code. It was held that the duplicity in the charge was one that
could have proceeded in one trial and was merely an irregularity which can
be cured by section 422 provided such duplicity did not prejudice the
accused as to occasion a failure of justice. The appellate court noted that the
trial judge was oblivious that there were two distinct offences in the charge
and had not considered the evidence in respect of each alleged offence
separately. The learned trial judge had in fact made one single finding and
imposed one punishment for two offences. Though the duplicity was merely
an irregularity, it had caused confusion in the mind of the learned judge, and
the appellate court said that it was impossible to say that a failure of justice
had not been occasioned. The appellate court set aside the conviction,
quashed the sentence, and a retrial ordered.

CHARGE – Duplicity: Nullity?
• Duplicity inevitably creates uncertainty and embarrassment to the
accused in his plea or in putting up his defence. The trial judge too
may be oblivious that there were two distinct offences in the charge
and had not considered the evidence in respect of each alleged
offence separately, and unwittingly end up making one single finding
and imposed one punishment for two offences. Duplicity must,
therefore, be avoided as clearly provided by section 163 of CPC save
one exception under section 153(2) of CPC to avoid unnecessary
retrial.

CHARGE – Misjoinder: section 163
• 163. Separate charges for distinct offences.
For every distinct offence of which any person is accused there shall be a separate charge,
and every such charge shall be tried separately, except in the cases mentioned in sections
164, 165, 166 and 170.
• The accused will be handicapped or embarrassed in conducting his defence if many
charges are tried simultaneously. Charging them separately will also avoid the confusion
and gives clarity to the issues involved by ensuring that there can be no introduction of
evidence to show that the accused is guilty of some other offence.
• See Yew Poo v PP [1949] 1MLJ 131
The appellant was charged with robbery and possession of revolver, offences punishable
under sections 392 (robbery) and 397 (armed robbery) of the Penal Code. The appellate court
noted that the trial judge was oblivious that there were two distinct offences in the charge
and had not considered the evidence in respect of each alleged offence separately. The
learned trial judge had in fact made one single finding and imposed one punishment for two
offences. It had caused confusion in the mind of the learned judge, and the appellate court
said that it was impossible to say that a failure of justice had not been occasioned. The
appellate court set aside the conviction, quashed the sentence, and a retrial ordered.

Misjoinder: section 164
• 164. Three offences of same kind within twelve months may be charged together.
(1) When a person is accused of more offences than one of the same kind committed
within the space of twelve months from the first to the last of such offences,
whether in respect of the same person or not, he may be charged with and tried at
one trial for any number of them not exceeding three.
• Jayaraman & 7 Ors v PP [1979] 2MLJ 88
• 8 accused persons and four charges of culpable homicide not amounting to murder
under section 304 of the Penal Code exceeded the limit of three charges committed
in a year for the trial of offences of the same kind which should not exceed three. As
a general rule, under section 163 of CPC, each charge shall be tried separately but
exception is given by section 164 of CPC provided the trial for offences of the same
kind committed in a year must not exceed three trials. The court then held that the
four charged were committed “in one series of acts so connected together as to
form the same transaction” and all the accused and the four charges can be jointly
tried under section 170 of CPC. It was so because the murder occurred at the same
time, same place, there were offences of the same kind in view of their common
intention. The element of proximity of time, unity or proximity of place, continuity of
action and continuity of purpose or design made the 4 offences charged were
committed in the same transaction.

Misjoinder: section 165
• 164. Three offences of same kind within twelve months may be charged together.
(1) When a person is accused of more offences than one of the same kind committed
within the space of twelve months from the first to the last of such offences,
whether in respect of the same person or not, he may be charged with and tried at
one trial for any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of
punishment under the same section of the Penal Code, or of any other law for the time
being in force:
• Provided that, for the purpose of this section, an offence punishable under section
379, 380, 382, 392, 393, 394, 395, 396 or 397 of the Penal Code shall be deemed to be
an offence of the same kind as an offence punishable under any other of the said
sections, and that an offence punishable under any section of the Penal Code or of
any other law for the time being in force shall be deemed to be an offence of the
same kind as an attempt to commit such an offence, when such an attempt is an
offence.

Misjoinder: section 165
• Cheating and CBT are not offence of the same kind - Lim Meng Seng v PP [1950] 1
MLJ 86.
• Dishonest misappropriation (403 Penal Code) and cheating (418 Penal Code) are not
offence of the same kind. – Mohammad Kassan Bin Hassan v PP [1950] 1 MLJ 225;
• 4 offences committed over a period from 1948 – 1955 – Chin Choy v PP [1955] 1 MLJ 236;
• 4 separate acts of rape of his daughters over a period of 5 years – Azahan bin Mohd
Aminallah v PP [2004] 6 AMR 810;

Misjoinder: section 165
• (1) If in one series of acts so connected together as to form the same transaction
more offences than one are committed by the same person, he may be charged with
and tried at one trial for every such offence.
• In PP v Ridzuan Kok Bin Abdullah, Abdul Malik Ishak J set aside the preliminary
objection of the defence counsel that two charges of trafficking in drugs and
unlawful possession should be tried jointly because the offences were committed in
a series of acts so closely connected together as to form the same transactions.
The Judge applied the test as laid in Amrita Lal Nazra & Ors v Emperor, that there
was proximity of time, unity or proximity of place, continuity of action, and
community of purpose or design in the two cases, and it would be a miscarriage of
justice not to order the joinder of offences. The joinder would evidently save time
and expenses, and expedite the trial

Misjoinder: section 165
• Jayaraman & 7 Ors v PP [1979] 2MLJ 88
• 8 accused persons and four charges of culpable homicide not amounting to murder
under section 304 of the Penal Code exceeded the limit of three charges committed
in a year for the trial of offences of the same kind which should not exceed three. As
a general rule, under section 163 of CPC, each charge shall be tried separately but
exception is given by section 164 of CPC provided the trial for offences of the same
kind committed in a year must not exceed three trials. The court then held that the
four charged were committed “in one series of acts so connected together as to
form the same transaction” and all the accused and the four charges can be jointly
tried under section 170 of CPC. It was so because the murder occurred at the same
time, same place, there were offences of the same kind in view of their common
intention. The element of proximity of time, unity or proximity of place, continuity of
action and continuity of purpose or design made the 4 offences charged were
committed in the same transaction.

Misjoinder: section 165
• Chin Choy v PP [1955] 1 MLJ 236 – Mathew CJ
• Two offences of consorting contrary to section 5(1) of the Emergency Regulations
1948, two offences of possession of revolver contrary to section 4(1)(a), one offence
of being in possession of ammunition contrary to section 4(1)(b) both under the
Emergency Regulations 1951 that spread from 1948 to 1955 and over a number of
unspecified places in the State of Pahang was held as not form part of the same
transaction. The court also held that as a practice, charges which are not capable of
being tried together should be made on a separate charge sheets and the subject of
separate trials. In this case, the fact that the accused pleaded guilty to two of them
did not cure the original illegality that he was required to plead to four charges.

Misjoinder: section 170:joint trial
• PP v Abdul Razak Abdullah Baginda & 2 Ors, the political analyst is charged with
abetment in the murder of Mongolian beauty Altantuya Shaariibuu. The High Court
Judge Datuk K.N.Segara allowed the Deputy Public Prosecutor’s application to have
Abdul Razak's case to be jointly tried with that of two police personnel from the
Bukit Aman Special Action Squad (UTK) charged with the murder of Altantuya, 28.
The accused Razak, 46, is accused of abetting C/Insp Azilah Hadri, 30, and Kpl Sirul
Azhar Umar, 35, to commit the murder.
• Jayaraman & 7 Ors v PP [1979] 2MLJ 88
• 8 accused persons and four charges of culpable homicide not amounting to murder
under section 304 of the Penal Code. The court then held that the four charged were
committed “in one series of acts so connected together as to form the same
transaction” and all the accused and the four charges can be jointly tried under
section 170 of CPC. It was so because the murder occurred at the same time, same
place, there were offences of the same kind in view of their common intention. The
element of proximity of time, unity or proximity of place, continuity of action and
continuity of purpose or design made the 4 offences charged were committed in the
same transaction.

Pre-trial discovery: section 51 & 51A
• s 51A, the prosecution is required to deliver to the accused the following
documents before the commencement of the trial:
• a copy of the information made under s 107 relating to the commission of the
offence with which the accused is charged, if any;
• a copy of any document which would be tendered as part of the evidence for the
prosecution.
• a written statement of facts favourable to the defence of the accused signed under
the hand of the public prosecutor or any person conducting the prosecution.
• Prior to the insertion, defence counsel is only entitled to the charge sheet, cautioned
statement (Khoo Siew Bee & Anor v. PP) and the first information report (Anthony
Gomez v. Ketua Polis Daerah Kuantan [1977] 2 MLJ 24). The task of a defence
counsel is to represent, advise and prepare a defence for the accused. With such
limited documents given to the accused before trial, it is difficult for the defence
lawyers' work as they would have to make numerous applications under section 51
of CPC to request for copies of important documents in preparation of the defence.

Pre-trial discovery: section 51 & 51A
• In Dato' Seri Anwar bin Ibrahim v Public Prosecutor [2010] 2 MLJ 312; [2010] 4 CLJ
265 (FC), the Federal Court said:
• Section 51A of the CPC (A1274/06) is new. It provides for a mandatory obligation on
part of the prosecution to supply to an accused person the first information report
made under s 107 of the CPC, a copy of the document which would be part of the
prosecution's case and any statements of facts favourable to the defence , (with a
safeguard on public interest consideration).
• In Public Prosecutor v Kandiah a/l Subramaniam [2009] 9 MLJ 558; [2009] 5 CLJ 770
(HC), the defence raised the issue of non-compliance with s 51A of the CPC where
the prosecution failed to produce police reports and contended that failure to do so
will render the police reports inadmissible. Syed Ahmad Helmy J held:
Though the wording of the section is predicated by the word 'shall' nevertheless to my
mind of particular importance is the question of relevancy and prejudicial effect of P17
and P18. It is also prudent to be minded of the salutary advice of Lord Denning MR in
Sheffield City Counsel v Graingers Wines Ltd [1978] 1 All ER 71 at p 72 to the effect that
'it is always the matter of impression' in determining whether the word 'shall' is to be
treated as mandatory or directory.

Pre-trial discovery: section 51 & 51A
• In Public Prosecutor v Mohd Fazil bin Awaludin [2009] 8 MLJ 579; [2009] 2 CLJ 862
(HC). Followed by Public Prosecutor v Chan Keang Lean [2010] 1 CLJ 239, the
prosecution failed to deliver certain relevant materials or documents to the accused.
The defence contended since the CPC is silent on the effect of non-compliance, it
invites the court to draw guidelines from other jurisdictions. Mohd Zawawi Salleh JC
analysed some authorities from United Kingdom and Australia on the subject of
disclosure. However the learned judge was of the view that one should be cautious
while making references to those authorities as they differed from our Code. The
Court held that failure to comply with s 51A of the CPC would not render the trial a
nullity. The court stated:
Firstly, there is a distinction between provisions which prescribe the manner of trial and
provisions which provide for the conduct of the trial. Disregard of a provision under the
former is fatal to the trial and at once invalidates the conviction. However, disregard of
the latter, even though prescribed in a mandatory manner is not fatal unless the court is
satisfies that the accused has been prejudiced. In my opinion, provisions relating to the
delivery of certain documents to the accused before trial like s 51A of the CPC concerns
the conduct of the trial.

Pre-trial discovery: section 51 & 51A
• A comparison of s 399, s 402A and s 51A of the CPC will illustrate the point.
Subsection (2) of s 399 of the CPC sets a precondition, in that, where the public
prosecutor intends to give any evidence of the report of a person listed under sub-s
(2), he has to deliver a copy thereof to the accused not less than ten clear days
before the commencement of the trial. If the public prosecutor did not comply with
the precondition stipulated, the report is not admissible in evidence. Therefore, the
service of notice to the accused is not only procedural but it is evidential. So too s
402A of the CPC. This section was enacted to prevent any person from fabricating
evidence of alibi and to enable the police to interrogate the intended witness or
witnesses well before the date of trial to ascertain with the requirements of s 402A
will render evidence in support of an alibi inadmissible.
• The non-compliance with s 51A of the CPC would not statutorily prevent
prosecution from tendering the documents which were not delivered to the accused
person before trial as evidence in the course of the trial. Therefore, it is procedural
and not evidential.

Pre-trial discovery: section 51 & 51A
• ... it is my considered opinion that the world 'shall' in sub-s (1) of s 51A of the CPC
means directory. If the requirement of s 51A of the CPC has not been timely
complied with by the prosecution, I think there is no impediment for the court to
adjourn proceedings to enable counsel to inspect documents referred to in s 51A of
the CPC, the court should keep in mind not only to the technical non-compliance of
the section but also to the justice of the particular case. Therefore, the court still has
powers and discretion to grant adjournment to enable counsel to inspect the
documents.
• Linton Albert J in the criminal revision of Lee Lu Chuang v Public Prosecutor [2010]
3 AMR 379 held that s 51A of the CPC is mandatory and the trial will not commence
until the said section is complied with.
• In April 2012, there was amendment made to section 51A which endorses the
decisions of Public Prosecutor v Kandiah a/l Subramaniam [2009] 9 MLJ 558; [2009]
5 CLJ 770, Public Prosecutor v Mohd Fazil bin Awaludin [2009] 8 MLJ 579; [2009] 2
CLJ 862 (HC), and Public Prosecutor v Chan Keang Lean [2010] 1 CLJ 239

Pre-trial discovery: section 51 & 51A
• Distinguishing section 51 & 51A of CPC
• Section 51 relates to discovery where it is a right of the Accused to apply, but the
court has the discretion to grant or not. On the other hand, under s 51A, there is no
right for the accused to apply but there is a duty imposed on the prosecution to
supply the documents.
• The Federal Court in Dato' Seri Anwar bin Ibrahim [2010] 2 MLJ 312; [2010] 4 CLJ 265
(FC) held:
Thus, to import the so called philosophy behind s 51A into s 51, in interpreting the latter
section in a liberal fashion as was done in the High Court, would be losing sight of the
object of s 51. It will be seen later in this judgment that the object of s 51 is for a limited
access. Its scope is restricted by law. In our view the High Court had erred in law in
adopting the above approach. By so he had in effect expanded s 51 CPC and had
effectively changed the law. Changes in the law are for the Parliament to decide, not the
judiciary.

Pre-trial discovery: section 51 & 51A
• The Federal Court in Dato' Seri Anwar bin Ibrahim [2010] 2 MLJ 312; [2010] 4 CLJ 265
(FC) held:
In our view the learned judge was also wrong to say that earlier cases decided on s 51
are no longer applicable. Having considered both sections, we agree with the Court of
Appeal that s 51 and s 51A are two separate and distinct provisions. Section 51A is a
provision which imposes an obligation upon the prosecution to supply certain
documents and materials. It has no connection to s 51 which gives the court a
discretion to allow for discovery in specific instances. Hence, s 51A should not be used
in interpreting as it stands and taken to mean according to its plain an ordinary meaning
and not be differently read. Thus, s 51 cannot now be modified with the aid of the so
called philosophy underlying the new s 51A, even if such philosophy.

Pre-trial discovery: section 51 & 51A
• In the Supreme Court case of Public Prosecutor v Raymond Chia Kim Chwee & Anor
[1985] 2 MLJ 436 (SC) Hashim Yeop San SCJ held that:
• (1) In matters of application made under s 51 of the CPC, the court must consider
the justice of the case and at what stage of the proceedings, the application is made.
• (a) Application before the commencement of the trial: ss 152, 153 and 154 of the
CPC regarding the framing of charges must be considered. If particular document is
specified in the charge, then the prosecution must allow inspection of the document
by the accused to enable him to prepare his defence.
Note: defence counsel is only entitled to the charge sheet, cautioned statement (Khoo
Siew Bee & Anor v. PP) and the first information report (Anthony Gomez v. Ketua Polis
Daerah Kuantan [1977] 2 MLJ 24).
• (b) Application during the trial: then the strict rule of relevancy must be strictly
enforced (for example, if the prosecution tenders a document which is relevant, then
the accused is entitled to a copy of it).
• (2) A general application for unspecified documents should not be entertained.

Pre-trial discovery: section 51 & 51A
• Dato Seri Anwar Bin Ibrahim v PP [2002] 2 MLJ 312, Yang Amat Arif-Yang Amat Arif
Mahkamah Federal sebulat suara memutuskan:- dimuka surat 329 - 330;
• "....We have looked at the authorities presented to us during arguments, including
those from India and Singapore and found them united in their holding that s 51
must necessarily operate within certain inbuilt limitations.... Its scope, according to
all authorities that we have read, is confined to the production of documents or
materials which are `necessary or desirable' for the purpose of the trial. And these
two qualifications depends on which particular stage or point of time the application
was made. If as happened in this case, it was made at the pre-trial stage, then the
discovery must....be confined to the matters that are specified in the charge.
• ......One settled principle attached to the application for discovery under s 51 of the
CPC is that, at this stage, a roving and fishing inquiry for evidence is not
permissible. A catch all net cannot be cast. The appellant is not entitled to know by
what means the prosecution proposes to prove the facts underlying the charge he
faces. This remains the prerogative of the prosecution."
• .