Criminal Procedure

1.    Police statements – Section 112 CPC, non compliance with Section 112

2.    Statements of Section 112 are generally inadmissible

3.    However it is admissible in certain situation

4.    When will the DPP impeach the credit of witness

Prosecution à statements favouring the prosecution will say on guilt of accused

Defence: Witnesses favouring the innocence of accused will be on defence side

So example 112 statement favoured prosecution and in court he changes his story and now against prosecution and here prosecution will try to impeach credibility of witness.

This procedure was laid out in the case of Muthusamy v PP [1948] MLJ 57:

1.             Party applying to establish that the witness has given oral evidence in court which is materially (material to the fact in issue) different from his police statement – so what is the fact in issue? The guilt of person.

2.             Ensure that the police statement has been recorded in accordance to Section 112 CPC

3.             Party applying to inform the court that you intend to impeach the credibility of the witness

4.             Mark out or underline on the police statement preferably in red the portion on which the witness has contradicted himself (must show court where is the contradiction)

5.             Hand over the police statement to the court pointing out the material portions on which the contradiction has taken place (so must remember when talk about materiality it must relate to the fact in issue or a relevant fact meaning guilt of accused or innocence of accused. (very important) – suppose to hand police statement to the court but why can’t give to the defence, they have no access. Kho Siew Bee because they are all privileged statement to first hand over to the court.

6.             Let the judge/Magistrate rule as to whether the contradiction is material or immaterial which is very important

7.             If immaterial, the judge/Magistrate will return the police statement and no impeachment will be allowed BUT If material, impeachment proceeds

8.             If impeachment is proceeding, ask the witness whether he made the particular statement

9.             If he admits making the police statement, show the police statement and if he subsequently identifies it, mark it as an exhibit

10.         If witness denies making the statement, proceed to prove the statement

11.         Proof of the statement made by the witness is done by calling the recording police officer and any interpreter if one has been used. Clearly establish that the record shows, through the recording police officer, that the witness understood the questioning, that he was warned of the provisions of section 112 of CPC and that the statement was read back to him after recording and confirmed to be correct by the witness (so basically to comply with Section 112)

12.         When the police statement has been proven, it will be marked as an exhibit (don’t get confused, if witness admit straight mark as exhibit, if don’t admit, prove then mark as exhibit)

13.         From now on, the questioning is usually done by the judge/Magistrate and the witness will be asked to explain the contradiction. If the court is not satisfied with the explanation, the witness will stand impeached and his evidence will be unworthy of credit. A short submission may or may not be necessary (so witness has already shown the contradiction and shown it and reason why he was asked to explain the contradictions is to repair his credit worthiness and this explanation is very important)

14.         It may be possible that the explanation process will have to be done by the DPP or the PO, if so proceed to point out the contradictions of the witness and ask him to explain them. Leave to the court to accept or reject the explanations. A short submission may or may not be necessary (normally asked by court to explain because court suppose to be independent but sometimes court may ask DPP to ask the questions)

15.         Proceed to the next witness in the trial (meaning the impeachment proceeding is over) See Dato Mokhtar Hashim [1983)] 2 MLJ 232 goes to show how the witnesses credit should be accessed by the court. Abdoolcader said this:

“when a witnesses credit is sought to be impeached under the provisions of Section 145 and 155(c) of the EA, his credit stands to be accessed as a whole with the rest of the evidence at the appropriate stage that is to say at the close of the case for prosecution for defence as the case may be. No immediate order of a summary nature can or should be made as was done in this case. (this judge is saying is wrong) and the right of cross examination or re examination according to the circumstances should not be denied as it may well be that on the exercise of such right, his credit might be repaired, restored, or reestablished.”

Husdi v Khoo Siew Bee – READ ON THIS CASE – showing a hunch.

The effect: if credibility impeached, whole evidence thrown out of the window and then charge him with perjury. 

[1946] MLJ 1 à Whole evidence will be erased like an Indian rubber

PRESENTATION

-       Start with legal provision first unless there is no provision then only go to case laws

-       Don’t simply cite case laws

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)

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

Court issues summons/warrant of arrest [1^st schedule 3^rd 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.

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 10^th 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.

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)