Saturday, 18 October 2014

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About The Public Prosecutor


Public Prosecutor

-          Unable to act because of sick, absent or unable to act so who acts on his behalf? The solicitor General and not the DPP. This is under Section 376(2) CPC. Assumes the role of the PP, and then becomes the DPP. Other written law, it should be the same position because bound by the supreme law of the country.
-          Section 145(3) of FC on the institution
-          Section 376 until Section 380A

Who can prosecute?
1.                  PP
2.                  DPP
3.                  Senior DPP
4.                  APP – assistant public prosecutors
5.                  Prosecuting officers à example prosecuting officers from the state, given special powers to prosecute.
All appointed by the PP. As far as SDPP is concern, they are the alter ego of the PP. Meaning to say; the senior DPP can step into the shoe of the PP to conduct prosecution and assume the role of PP except if the written law says the PP can only exercise its role personally. Example; transfer of cases DSAI charged in sessions court and PP issues certificate and transfers to HC for trial and cert was by the PP personally, cannot be done by DPP.

Who are the APP?
-       It is a new concept under Section 376(3A)
-       If you look under the provision, the first part is similar to 376(3) ‘fit and proper person’ à not unsound mind, qualified person under the LPA 1976.
-       Under the general control and direction of PP
-       Added feature à their powers are limited and restricted by PP, but you don’t have that for DPP if you compare the section of 376(3) and 376(3A). Currently the APP in Singapore are those who has law degree but cannot practice law.



Now go into Section 377 Prosecuting officers
Section 377(b) VERY IMPORTANT (additional categories) à authorized in writing by the PP (law says personally then only the PP alone) but the word personally is not there so that means the DPP can authorize as well.
i.                    Advocate and Solicitor (qualified person under LPA)
ii.      Police inspector – rank is inspector but unless in some district, no inspector therefore the proviso allows person below rank of Inspector can prosecute but all of these categories must be authorized in writing
iii.    Officer of any government department who are law enforcement agencies example JPJ.
iv.                Officer of local authority
v.                  Officer of statutory body (example SSM, SC, MCCA)
vi.    Any person employed or retained by local authority – they may employ other people to do prosecution for them

When the prosecutor introduces himself, he will tender the authorization in writing as well (pemberian kuasa secara bertulis)

What is a criminal prosecution?
-       It is a criminal proceeding in a criminal court
-       Prosecute an accused person who has committed a crime
-       That crime must be known under the Penal laws
-       This criminal prosecution forms the criminal trial in a criminal court (can use it interchangeably) trial = witnesses called. Then there is inquiry for example inquest. All these are handled by either the PP, DPP, APP, Prosecuting officers or SDPP
-       Once there is already a prosecution/criminal trial, once trial terminates, there will be a person who is unhappy and therefore he will appeal to the superior court
-       Appeal process simple from subordinate court to superior court (court for children = magistrate court)
-       If the criminal prosecution ends in subordinate court then appeal to superior court (matters which originates from Magistrate and sessions court ends in COA, matters which originates in HC ends up in the federal court)


Who can appear for criminal appeal?
-       Look at section 378
-       PP, SDPP, DPP so no prosecuting officers in a criminal appeal, so if from JPJ when appeal matter comes before HC, then it has to be handled by the authority as above, cannot be by the prosecuting officer
-       Section 379 CPC à by advocate. DSAI.
-       Prosecution by private persons – Section 380. Once private summons brought by private person, that means a complaint has been brought to the Magistate and Magitrate issues summons to the husband example, if find liable, sentence to a find, if not happy can appeal, but in trial court no lawyers involved, so a lawyer has to appear to conduct prosecution.
1.    Private persons
2.    SDPP
3.    PP
4.    APP
5.    Local authority

How does the PP institute a Prosecution?
1.    Law enforcement agency investigates a crime
2.    Results of investigation paper referred to the PP’s office
3.    Peruses through the IP
4.    DPP may decide the following after studying the IP
5.    No further action – (i) when he studies the IP there is a report lodged against the suspect to see where the elements are fulfilled and if not fulfilled no further action/ (ii) probably disciplinary action taken by the organization which complaint/ (iii) to prefer a charge against the accused person (so first & third is opposite)/ (iv) accused person may be allowed to pay a compound (section 260 CPC)
So only (iii) allows to initiation, once the prosecution decides to charge accused person, that decision amounts to institution of prosecution (Institution means commencement of prosecution PP v Dato Harun Idris)
6.    The case of Perumal v PP [1970] 2 MLJ 265 à after charge is read to the accused person, and the accused person pleads to the charge, that amounts to institution of prosecution. 

Conducting Prosecution
1.    SDPP, DPP, APP, PO may appear in court to conduct prosecution
2.    Before charge is read to accused person, if a PO appears to conduct prosecution he needs to tender authorization in writing, under Section 377(b). An authorization in writing relates to conduct of prosecution. Which is more serious? Sanction consent or authorization in terms of instrument? à Sanction of consent. Authorization provides locus but a serious instrument will be this. Favourite exam question is to distinguish these both.
3.    After that if the offence charged requires a sanction or consent in writing, then the prosecution must tender the said sanction or consent to the court before the charge is read to the accused person. Requirement of a sanction or consent is provided for in the written law under which an offence (as charged) is committed.
So conduct if PO appears he tenders authorization in writing to allow him to conduct whereas this is slightly different, sanction of consent depends on the law. Example offence under corruption, if you look at MACC act, can be prosecuted with writing of PP, so before charge read to accused person, then prosecution must show authorization, this consent depends on the written law and see whether the Act requires it. This sanction of consent relates to institution of prosecution. Likewise, the said sanction of consent entitles the court jurisdiction to trial the offence.

This means if law says you must have sanction of consent, you must tender otherwise court no jurisdiction to hear the case.

Prosecution will do the following to conduct prosecution;
1.    Call witnesses
2.    Tender exhibits à that relates to carrying on with the prosecution (Dato harun case)
3.    I
4.    (1st category) When he receives a complaint, this complaint here is not the FIR, so who lodges the complaint, check for the definition of complaint. Check Section 2 of CPC. Complainant here is a private person (private summons proceedings) à further details will be looked into next week. This is one way the Magistrate takes into commencement
5.    (2nd category) Upon own knowledge and suspicision of the commission, he saw the crime.(perjury) Other examples of crime committed before a Magistrate, example contempt of court. In those kind of instances. Section 353-359 (the process of contempt of court)
6.    (3rd category) Who takes the first step here? The court or PP? the PP. PP makes an application for a warrant of arrest to be issued against an accused person so that the accused person will be brought to court to be trialed. Example committed CBT, DPP apply warrant against company director, then the Magistrate will take note of the offence, taken cognizance. Common way.
7.    (4th category) At the end of the remand process, so no the arrest process. After the remand period is over, the accused is brought before the Magistrate in order to be charged. For example rape offence, within 24 hours not complete and remanded for 14 days, at the end of the 14 days he will be brought to Magistrate to be charged.

These are the 4 modes court take cognizance of offence. When talking about institution of proceeding, the judge must take cognizance of the offence. Under transfer, no accused person brought before judge and will go up by way of transmission. Most of the time brought under the subordinate court to be charged. Now he has taken cognizance of the offence 

8.                  Prosecution tenders charge against accused person. Assuming he is a PO, when he will tender the authorization in writing? Before trial Section 377(b). When he will tender a sanction of consent à before charge read to the accused depending on the requirement of the written law. The moment the sanction of consent is tendered = prosecution has already commenced.

Lin Hong Yap v PP decides that it will be prudent for the prosecution to attach the sanction of consent if required together with the application of warrant of arrest. Not all offences need this. This will suit under (3rd category). When make application to warrant prudent to have the application accompanied by the sanction of consent. Assuming no sanction of consent provided then to be produced in court before charge is read. Prosecution it then instituted. Whereas in (1st, 2nd, 4th, criminal proceedings were initiated). Compliance with Section 1289(a) OR (b) OR (c) OR (d) shows criminal proceedings have been initiated.

9.    Charge read and explained to the accused person
10.              Accused pleads to the charge of the trial (so step after cognizance is institution)


SO for the whole lecture today studied on institution and conduct, and you can’t have that without initiation. A criterion for initiation is cognizance and after cognizance à institution of prosecution à conduct of prosecution. After conduct there can be discontinuance of prosecution.

11.              Discontinuance of prosecution. This will fit in Article in 145(3)FC.
12.              Look at Section 254, discontinuance means = memberhentikan pendakwaan.
i.        254(1) PP may decide not to further prosecute an accused person at any stage of the trial. “At any stage” will not include after delivery of judgment. When is a judgment delivered in a criminal case? à before an accused is sentenced by the court.  Once sentenced, the court will be functus officio. Of course then PP cannot withdraw the charge.
j.        254(2) similar to 254(1) except the leave of court may be necessary when the PP discontinues this criminal prosecution. It doesn’t use the word “discontinue” but it uses the word “not the further prosecute an accused person” à amounts to discontinue. The moment the PP discontinues, the court will order a discharge of the accused person. The discharge here does not amount to an acquittal.

*Next week we do difference between discontinue and acquittal*

Institution of prosecution
1.    Perumal v PP [1970] 2 MLJ 265
2.    Long bin Samad [1974]
3.    Johnson Tan Han Seng v PP [1977] 2 MLJ 66
Conduct of Prosecution
1.    Repco Holdings Bhd v PP [1997] 3 MLJ 681
Consent & Sanction
1.    Abdul Hamid v PP [1956] MLJ 231
2.    Joginder Singh v PP [1984] 2 MLJ 133
Discontinue
1.    [1982] 1 MLJ 86
2.    PP v Lee Chan Sang [1989] 1 MLJ 224
3.    PP v HLS Perera [1977] 1 MLJ 12









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