Criminal Procedure

WAYS OF BRINGING SUMMONS PROCEEDINGS

1.                  Complainant who is an individual makes a complaint (s2 of CPC) to Magistrate. Sometimes police may refer complaint to the Magistrate (RTM)

2.                  Refer complaint with the intention Magistrate initiate criminal proceedings against the person against the person complained (defendant/accused)

3.                  Magistrate must take cognizance of offence complained (it must be penal offence under the law); the complaint shall be with basis/truthful [Section 128(1)(a)]

4.                  For the Magistrate to take cognizance of the offence when the complainant makes the complaint under oath (if he lies can be cited for perjury)

5.                  Magistrate may inquire further into the complaint to verify and establish the truthfulness/veracity of the complaint

6.                  Before the Magistrate does that he shall notify the PP, seven clear days before examination of the complainant [Section 133(1)(b) + Article 145(3) – to institute]

7.                  Complainant examined by the magistrate under oath, reduced into writing, signed by the complainant & Magistrate

(a)           PP may appear if he wishes so

(b)          PP may direct police to Magistrate into the complaint and the result/outcome of the investigation to be reported to the PP

(c)           If so Magistrate stops questioning the complainant

(i)       Magistrate may direct the police to investigate (earlier PP direct Magistrate to investigate) and then report to him as well to the PP

(ii)     Magistrate may inquire further to ascertain the truthfulness of the complaint

(d)          If not investigating, Magistrate continues with the questioning

(i)       If he doesn’t investigate, he notify PP in writing 7 days before inquiry and PP may appear to assist in the inquiry, then Magistrate will decide to dismiss the complain under Section 135(1) if there is no sufficient ground to proceed with the complaint.

8.                  If he decides there is sufficient ground for proceedings

(a) May issue warrant of arrest (see fourth column of first schedule, see whether to issue warrant or summons)

(b)     He may issue summons

(c)    He may issue summons or warrant (scared the person will not turn out See Sec.47 of CPC)

9.                  If Magistrate question the complainant and doubts the truth of the complaint

(a)                He will record his reason

(b)   He will postpone the issuance of the criminal process – (Summons and warrants) to compel the attendance of the defendant/accused

10.              If (i) takes place the PP may decide not the proceed with the prosecution of the complaint and inform the Magistrate accordingly

SITUATION

What if a public officer lodges a complaint with the Magistrate? Example EPF officer lodges a complaint alleging that an employer has not contributed EPF for his Section 136 employees for a period of time?

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He has to initiate criminal proceeding against the employer

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He has to make use of Section 128(1)(a)

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EPF officer lodges a complaint using a standard form together with the proposed charged (this is in sem 2) to indicate that the employer (defendant) has committed criminal offence under EPF Act (this must be under oath so sometimes the officer will attach affidavit)

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Magistrate must take cognizance of this offence. What must Magistrate do to take cognizance?

§  To see if the offence committed is found in the EPF Act (there is no inquiry because this will go for trial)

§  Magistrate will then issues the process under Section 136 (see if warrants or summons)

§  This will be last part of 4^th Column, First Schedule (offences other than Penal Code)

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Once process issued, the defendant will face trial

Private summons Magistrate will deal with it but this is trial.

SECTION 137

§  Section 137 is a situation where an accused person pleads guilty by letter (PGL)

1.    Section 137(1)

Ø A may not appear in court.

Ø summons case, Magistrate dispenses with the attendance of A

Ø accused may be represented by an advocate

2.    Section 137(2)

Ø Only for offences which carries fine only

Ø Or fine OR imprisonment 3 months

Ø Or fine AND imprisonment for 3 months

Ø Accused may appear with his advocate

Ø Accused may write a letter to the Magistrate that he wishes to plead guilty by letter (PGL) by letter

Ø By PGL, A agrees to pay a fine if h is convicted of the offence

3.    Section 137(3)

Ø Accused must furnish his postal address

Ø Once informed of the fine, he has to pay up within 7 days

4.    Section 137(4)

Ø Magistrate may still requires the attendance of the accused (court’s discretion- budi bicara makhamah)

5.    Section 137(5)

Ø Especially so if the Magistrate decides to sentence the accused person to imprisonment, he will be required to be present in court

6.    Section 137(6)

Ø Accused is at liberty to withdraw his plea of guilty. So when he withdraws, he will be trialed and not admit into to the offence

TRANSFER OF A CRIMINAL CASE FOR TRIAL

Court

(a)    Jurisdiction to hear

-          HC any criminal cases CJA A91

-          SC any except death penalty cases SCA A92

-          MC any offences carrying 10 years imprisonment SCA

(b)   Jurisdiction to sentence

-          HC any sentence including death

-          SC any sentence except death sentence

-          MC 5 years imprisonment and fine RM10,00, whipping 12 strokes of the whip

-          Court for Children

WHAT ARE WRITTEN LAW AVAILABLE TO TRANSFER?

-       Court of Judicature Act, Section 12 of the Schedule

-       Subordinate Courts Act, Section 3(2) of Third Schedule

-       Including Rules of Procedure (CPC) – Section 177, 417, 418A

*for difference and comparison, refer to table*

Procedure cannot stand alone, it has to be tied up. See Section 121-126 which are exceptions.

TRANSMISSIONS OF CASE

Cases like murder, drug trafficking, Firearms which are all not triable by Magistrate’s court.

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Investigation of crimes

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Suspect

Omission of murder

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Procedure of Magistrate court

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Charge for Murder See Section 302 PC

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Charge will be read and explained to accused

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But no plea will be taken (because Magistrate no jurisdiction, it will be heard in HC)

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When PP issues a consent Section 177A

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PP will issue consent for murder case (most important report in murder case is to know the cause of death, so post mortem report is most important) after obtaining the post mortem + patalogist report. This means once it is confirmed that the death is not caused by other means but because of murder.

Drug trafficking, PP issue consent under Section 398(3), Requisition to require HC to trial the case  Section 41A DDA. (This is an example of transmission)