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Procedures & Differences between Sanction vs Consent
Investigation of crimes
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Initiation of criminal proceedings
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Court taking cognizance of the criminal offence
(Section 128 (1)(a) –(d)
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Criminal prosecution/ criminal proceeding instituted
(the point of jurisdiction of court)
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Accused appears/brought to court by warrant of arrest
Judicial Act by Magistrate
(1)
Offence known under the Penal Law
(2)
There is an offender to be prosecuted
Court issues summons/warrant of arrest [1st
schedule 3rd column]
Charge preferred by the prosecution is read to accused
person (before charge is preferred prosecution ought to be mindful to the
relevant penal provision – meaning as to whether the institution of the
prosecution against an offender requires a sanction or consent by the PP) so
important thing is whether sanction of consent is required or otherwise by
checking written law. Assuming the law requires consent or sanction then that
consent or sanction must be produced in open court by the prosecution.
“No prosecution for any offence under this act shall
be instituted except with the consent in writing of the PP” à depends on the written law
(here is the Capital Markets & Services Act)
Anti Money Act à no prosecution for an
offence under this Act shall be instituted except by or with the written
consent of the PP”
See Section 129 of CPC. Sections 172-188 are offences
against lawful authority of public servants. Example police officer asked to
stop and didn’t do so, then it will be an offence. So if DPP wants to prosecute
offences under here, need to have the sanction letter from PP or complaint
letter from the particular prosecution officer. (a) sanction (b) consent (b)
complaint (this one for purposes of prosecution different from FIR)
3 types of complaint so far
(i)
FIR
(ii)
Section 107
(iii)
Complaint as mentioned in the
above for prosecution
Perjury offences and need sanction in writing of PP or
complaint from that particular court (another category under 129). Third
category is forgery offences.
(a)
Offences against lawful authority of public servants
(b)
Perjury
(c)
Forgery
(d) Abetment
(e) attempt
All these cluster of offences requires consent in
writing. Why in writing? See 129(2) Important à see Section129(3) go back
to the process before charge read to accused person, if the law requires
sanction in writing for that particular offence, what DPP will do is to tender
the sanction in writing to court first before charge read to the person and
plea will be taken. Another aspect to remember the moment the PP issues
sanction in writing, must be effective within one month à Tengku Abdul Aziz v PP
Section 130
Section 130, 131 and 132 doesn’t; use the word
complaint. Section 130 is offences against state. 131 offences involving
contract of service and 132 are enticing.
Documents are important to show there is proper
institution of prosecution and if PP don’t tender and required it will be
nullity. The written law is important because if it requires the 3 docs earlier
and you have tendered then only the court has jurisdiction to trial offence.
Difference Between Sanction
& Consent.
In coming years these difference will be academic
because if we look into written law it uses the word consent. Abdul Hamid v PP à this case illustrates the
difference.
(see table below for
difference)
Sanction of consent relates to institution and
sanction is conduct. Assuming law says oral consent there will be a problem the
fact that category (i) appear they are considered as alter ego of PP, since
they are so if the law says oral consent the fact that they appear means there
is proper consent to the institution of prosecution so no need to produce any
consent but consent in writing need to tender. See the difference of oral and
written consent à see case of Ooi
Hee Koi v PP, PC. Let’s say law says oral consent by PO appears, is the PO
alter ego? No, that means in practice if law says oral consent not advisable
for PO to appear so people under category (i) should appear.
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SANCTION
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CONSENT
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No such deliberation. (in practice both requires
equal weighing and no difference and serious consideration)
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Require deep deliberation by the PP and serious mind
weight
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Prerequisite for institution of prosecution if the
written law requires (not all offences requires these only certain offences)
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ß Similar to
sanction
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If the written law requires, is bestows jurisdiction
on the court to trial the criminal offence
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ß Similar to
sanction
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Normally in writing (see section 129 it talks
about in writing)
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The sections just now look like in writing but
sometimes oral consent and sometimes in written form example the SCA. If in
writing no problem DPP will tender consent in writing. Issue is this à categories of
people who can appear in court (i) APP, DPP, SDPP, PP (ii) PO appear with
authorization in writing Section 377(b) When they appear in court the conduct
or institute? = to conduct. (see the
difference between oral and written consent)
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If in writing, ought to be tendered in court before
charge is read to the accused person à Haji Mohamad Paiman v PP
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ß same for
consent
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If not in writing, presence of DPP to conduct
prosecution will be sufficient.
Reason:
(a) Art. 145(3),
alter ego of PP – S.376 CPC
(b) Criminal
prosecutions are instituted in the name of PP (Ooi Hee Koi v PP)
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ß same for
consent
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Time period to act upon the sanction must always be
followed strictly (example S.129 (5) à case of Tengku Abdul Aziz v PP – refer to
written law.
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ß similar to
sanction
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Failure to produce (important for exam) (meaning to say if need
sanction of consent must produce and if fail what is the effect:
(a) Will affect
the jurisdiction of court to trial offence
(b) The whole
criminal proceedings will tantamount to a NULLITY. The case of DP Vajendran v PP when all the way to
COA then noticed sanction was not produced for offence of perjury.
Proceedings went on HC conviction confirmed and the court said the whole
proceeding is nullity.
(c) In any event
the court will be concerned if failure to produce the sanction or consent in
writing causes failure of justice. If it causes failure of justice, the whole
proceedings will become a nullity. If not, the whole proceeding will
tantamount to an irregularity à authority can
be found in Section 422 of CPC.
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ß same for
consent
Flowing from that what amount to principle of
justice? Refer to the case of Joginder
Singh v PP
Not to allow an innocent person to be found guilty
and likewise a guilty man cannot escape the arms of the law on mere grounds
of technicalities. That will be consideration of court (Important).
Same for both sanction and consent.
Hasan bin
Ishak
Formula to avoid non production of Sanction/Consent:
(a)
To accompany S/C (if the written law requires it) when application is
made to the court by the prosecution to initiate criminal proceeding under
Section 128. So it will be 128(1)(c) & 128(1)(d) to be exact
before the court takes cognizance of offence à case of Lin Hong Yap
(b)
To tender before the charge is read to the accused person
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Must remember authorization relates to conduct and
sanction and consent relates to institution.
Discontinuance
Article 145(3) àconduct, institute,
discontinue (The moment he institutes he can discontinue Long bin Samat v PP
How does it take place?
(a)
PP applies to withdraw the charge – declined to prosecute further
(straightforward situation) against the accused person (Sec.254 CPC)
(b)
Court discharges an accused person.
(c)
Court acquits an accused person
Look back at Section 254 à
(1)
If inclined to prosecute any further will discharge the person
(2)
The effect is similar except here talks about subordinate court and (1)
is on the high court. Whoever appears for prosecution and declines to prosecute
further then the court will discharge accused person.
Discharge/ Acquittal
Section 254(3)
Example out of
10 witnesses 9 given but cannot close case cause need to call witness from US,
but court doesn’t want to wait so prosecution have to chose to withdraw charge
or to close case. If close case easy for court to decide whether prosecution
proven case against accused minus 10th witness then the court will
choose whether to acquit accused. Only problem is this may discharge if
prosecution request for postponement the court may refuse and if refuses it may
discharge the accused person but this case PP
v HLS Perera à the court cannot do so. This case suggests that the
court must always wait for the prosecution. WHY? Because of article 145(3) where
the court is not in the position to discharge and PP can only institute and
discontinue.
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DISCHARGE
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ACQUITTAL
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Withdraw charge
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At the end of prosecution case because after merits
of the case fully heard by the court.
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To discharge the accused person
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If prosecution doesn’t want to close case and wants
postponement and therefore can prosecution discharges the case? By right
court should postponed the case, then if court choose not to the court still
cannot acquit person because full case not completed but court
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If discharge accused person, PP can always recharge the accused person
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Assuming court acquits the accused person the court cannot recharged
for the same offence the rule against double jeopardy. Article 7 FC. (Partially
correct) because when asked postponement case have not been completed.
Prosecution can recharge because merits of case not completed yet and
authority will be PP v Lee Chan Sang.
This is important because lately due to KPI court has been discharging
accused person like nobody’s business so come out with Section 254(a) CPC à This new section deals with the trial of an accused who has
been given a discharge and subsequently is recharged for the same offence
Where an accused has been given a discharge by the
Court and subsequently he is recharged for the same offence, if witnesses
have been called to give evidence in the
trial before the discharge was given, the trial
shall be reinstated and be continued as if
there had been no discharge given to the accused
So pending 10th witness, court say no postponement and want
to discharge PP can recharge and continue where they stopped because of the
drawback of KPI. Only if case completed cannot be recharged for the same
matter.
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Procedure Complaint to the Magistrate by an individual Private
Person
Section 128(1)(a) read together with Section 2 CPC on
the meaning of the word complaint.
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Court to take cognizance (in what way) of the offence
in the following manner. See example simple hurt to wife Section 323 whether
seizable or non seizable offence? – Non seizable so need to apply or warrant.
Sometimes like this, will go police station to lodge report and when the wife
lodge report the police will say this is a small case and police will normally
say RTM (refer to Magistrate), in small towns they know Magistrate to
complaint. So once they go to Magistrate to complain, that is when Section 133
will come in.
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Magistrate will examine the complaint.
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Magistrate give notice to the PP (see the moment the
person lodge complaint, PP has to be notified, this is how PP regulated
institution of prosecution, individual here institutes the prosecution and
therefore law says PP only can institute so must give notice to PP)
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Must follow
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Magistrate shall examine complaint under oath and
reduced to writing the complaint and signed by complainant and Magistrate.
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PP may appear (after notice served on him may or may
not appear up to him but at least he is informed) to assist
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(New) despite the above, the PP may direct the police
to investigate.
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If so, the examination of the complainant will stop.
Why? Police take over investigation
Section not applicable to complaint of offence in
summons case made by PO, public officer or public servant acting in personal
capacity. Here see lodged by private person and the same applies to public
officer. Example employer not contributing EPF to employee and action to be
taken against employer then lodges complaint to Magistrate. That process
similar to earlier process, the moment EPF officer complaints and check there
is offence then issues summons to employer, here Public Officer not examined,
come to court to give evidence later. See à PP v Tan Hoe Wat, Re Rasiah Munusamy (how private summons is)
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