Saturday 18 October 2014

20:25 - No comments

Introduction on CPC & Criminal Courts

-       Mentioning on applicable law.
-       Read first schedule. (to find which court to go to, warrant case, whether warrant of arrest is necessary, that is the purpose of the first schedule).
-       Essential Regulations 1975, by the High Court.
-       Kidnapping previously as rampant cases.
-       Section.3 CPC
-       If there are specific statute governing specific offences, then follow the specific law and that one will prevail for example ESCAR prevailing over CPC.
-       Also refer to Karpal Singh [1991] 2 MLJ 544 – this is where court explained the CPC
·         The CPC was intended to be an exhaustive pronouncement of the criminal procedure but it cannot be said to be comprehensive.
-       If there is a lacuna in the law, then by way of Section 5, the English criminal procedure law shall be applied so far as the same shall not conflict or be in consistent with the CPC and can be auxiliary.
-       Sec.5 of CPC- acting as the saving provision
-       [1987] 2 MLJ 459 Re Kah Wai Video – about copyright case, police search premise and seize the things, the police prepared a list of the seized materials. In this list there are two main type of things, the scheduled and the unscheduled. The seize was pursuant to an information à leads to a search à leads to a seizure. The police also seized other items not in the schedule (unscheduled) not in the schedule under the warrant of search. The magistrate was doubtful if the search was correct, because of that he made another order, this one must be returned to the owner, after the search n seizure someone came up and say ‘these’ things belong to them not infringing the copyright. Magistrate give order to return the unscheduled items. When went to the higher court, they said it is correct, warrant was valid in accordance to law. But when it comes to the unscheduled items, when he made the order to return it, it was not within the law.  (the law says if items not used within 6 months, must be returned, so check on the time frame from when the order was made, and see the time upon returning). Look at S.15 and then consider what was the law in England.
-       [1970] 1 QB 693 -  applied English principle, and therefore says there is no issue whether the unscheduled one is valid or otherwise by way of the extension of common law principles. (Ghani v Jones) – court here did not consider Section 435.
-       Sec.435 of CPC (stolen items + suspected)
-       We used to have at least 3 CPC etc and slight history.
-       Importat amendments in CPC
-       [2007] 7 MLJ liii (READ THIS ARTICLE) – for tuto by Baljit Singh the amendments in 2007.
-       The word offence is used instead of crime.
-       Definition of crime
-       What is more important is this, we don’t use the word crime, we used the word offence. Cross reference to see whether both are the same whether it is punishable by the state.
-       Section 40 (where the word ‘offence’ is used) basically they consist of more or less the same definition. Offence = made punishable by the state.
-       If there is no offence committed, then there is no crime.
-       Mentioning on seizable and non seizable offences, bailable and non-bailable offences. (Section 2 of CPC)
-       Difference between warrant case and summon case
-       There are different procedures for summons case and warrant case as found in the books.
-       Complaint and First Information report (FIR) – not defined in the CPC
-       Sec.2(1) defines a complain
-       A complain and FIR are 2 ways public can inform state of an offence or suspicion of an offence.
-       Complain orally or writing to the magistrate, report to police or both ways.
-       The person who lodges the FIR is called the ‘informant’. FIR is the first report of an alleged offence, orally or in writing & serves as a complaint to the police to start investigation.
-       So in the way it is a complain but CPC don’t use it as a complain but in S.2(1) is an allegation to the Magistrate, If you complain to police it is FIR.
-       Sometimes FIR is the start of the criminal process but it is not always the case because a theft may appear in front of you but won’t do FIR but will try to arrest because it is a civil offence and arrest can be done by private individual. But in other situation normally the FIR is the one triggers criminal process through police investigation.
-       (1960) 1 MLJ 13 – PP v Leonard
-       So if the person doesn’t trust the police and doesn’t report to police, but went to Magistrate. (will be further discussed)
-       If PP says don’t have to investigate, then the person can have another option, to lodge complain to Magistrate.
-       Criminal process is set into motion, three processes may be identified:- Complain à Investigation à inquiry à trial. (can start with complain, or FIR, or arrest). Sometimes police an initiate investigation without the FIR.
-       Private Prosecutor (find out)
-       Investigation à charge à trial (so inquiry is no longer there).
-       So Investigation (14 days) after detaining 14 days it leads to a trial.

CRIMINAL COURTS
-       If we start with investigation, the person arrested must appear before court. So it becomes part of the criminal process. Hence, which court to go to?
-       Specific courts, court for juvenile, Section 11 of Child Act for Courts for Children.
-       Section 7 CPC – courts are generally open and public have access.
-       [1960] MLJ 179 – Lee Boon Tuan v PP
-       Not open to public in certain circumstances:- Section 101 SCA, Section 15 CJA, Section 12, Child Act 2001.
-       The scene may become the court as well up to the discretion of judge. The court can declare it.
-       For example the incident where the boy and friends in KL that was shot in the head by police, the accident scene was where the court was.
-       Example lahad datu case, the Magistrate, AG and judge were there at the scene then transferred to the High Court.
-       S.101 SCA power of court in relations to hearing in camera.
-       Section.12 CA, close court to protect the child.

JURISDICTION
-       The legal authority of the court is called jurisdiction.
-       Jurisdiction means pronouncing the law
-       It is also used in many English senses. For example it means the area over which a country o government wields political power. Or geographically it describes countries or the different legal system.
-       Another common word used in our statute and law book, ‘power’ may be used interchangeably with jurisdiction and power. But it can be wrong.
-       If they mean the same why use the two words, hence when some of the earlier judges look into the statue with the word ‘power’ as well, then it comes to their mind jurisdiction and power are different. So court distinguished in.
-       [1960] MLJ 1 – Lee Lee Cheng v Seow Peng Kwang:- According to the judge both are different, if two words are being used, they must equal to something different) – Read this case here. ‘Jurisdiction must come first before power’. Jurisdiction comes first then power. If you have the power without jurisdiction, you cannot exercise the power. So it works both ways.
-       Jurisdiction is a talking authority about matter, to make it useful must give power.
-       Types of jurisdiction:- Local jurisdiction, trial jurisdiction, sentencing jurisdiction.
-       For tutorial can we indentify the local, trial and sentencing jurisdiction of these sections:- 76, 88, 89, 85, 87, (magistrate court).

-       Sessions, 59, 63, 64 (so see which is which and tell the difference between trial and sentencing jurisdiction)



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