FUU CRIMINAL PROCEDURE CODE UK 4033 SEMESTER 1 SOALAN NO 1(3)

ENCIK. MUNIANDY PUAN.ROHAIDAH BINTI NORDIN PUAN.TENGKU NOOR AZIRA BT. TENGKU ZAINUDIN

DISEDIAKAN OLEH KATHIRAVAN A/L RAVEENTHRAN A121882

(a)

Seizable Offence v Non Seizable Offence The essential difference in the classification of seizable and non seizable offence

appears to be one whether a warrant of arrest is necessary before an arrest can be made.What are seizable offence and non seizable offence is set out in the first schedule of the code. According to section 2(1) of the CPC, Seizable offence is an offence where the police officer may arrest without a warrant. Under the third column of the first schedule of the code, offences punishable with death or imprisonment of above three years are generally described as seizable offence. Non Seizable Offence is an offence where the police may not arrest without a warrant. Offences punishable with below three years under the Penal Code or below five under other acts are generally described as non seizable offence. Where a specific statute spells out the nature of a particular offence as seizable, it shall be seizable despite the fact that the offence is punishable with imprisonment for less than 3 years. This offence can be exampled by offence relating to unlawful assemblies, meetings or processions under section 27 of the Police Act 1967. According to first schedule, these offences should be non seizable offence because the punishment is less than 3 years as stated in section 27(8) of the Police Act, where it punishable with a fine of not less than RM2000 and not more than RM10000 and imprisonment for a term not exceeding one year. However, according to section 27(6)1 of the same act, it provides that any police officer may arrest without warrant any person reasonably suspected of committing any offences under that section. This randers all offences under this section is seizable which the police officer may arrest without a warrant.

(b)

Warrant case v Summon case Warrant case relates to an offence punishable with death or with imprisonment of a term

exceeding six months. The warrant of arrest provided in section 38 to 43 of the CPC. In a criminal case, a warrant may issue for the arrest of the alleged perpetrator. The subject of the warrant may wait to be arrested or may turn him/herself in (surrenders him/herself) at the
1

Police Act 1967.

court that issued the warrant. On a warrant case, a warrant has been issued for the defendant's arrest. Once he is arrested, the case will be set for a court hearing. In most every case, he will be entitled to make bond prior to the court date. CPC prescribes two procedures for the trial of a warrant case By magistrate. One for case instituted upon a police report and one for case instituted otherwise than on a police report. A charge needs to be framed against the accused to issuing a warrant. Magistrate can discharge the accused if complainant is absent, or no charge is framed, or if the offence is compoundable and non cognizable. Summon Case relate to an offence which is not punishable with death or imprisonment for a term exceeding six month unless otherwise provided by the law. A summons can be used in civil or criminal cases to get witnesses or documents, or defendants in civil cases to appear in court or wherever the summons says to appear for deposition. If the person summonsed fails to appear, then a warrant may issue. In simple words, in a summons case, the defendant is issued a summons to appear in court at certain time. Besides that, a person cannot be arrested in summon case, otherwise that person failed to appear in the court. CPC prescribes only one procedure for all summons cases, whether instituted upon a police report or otherwise. Furthermore, no charge needs to be framed but only the particular of the offence needs to be conveyed to the accused. The accused may be acquitted, if the complainant is absent or if the complainant dies. (c) Jurisdiction of a criminal court v power of a criminal court. There are three types of jurisdiction of a criminal court. First subject matter jurisdiction, secondly local jurisdiction, thirdly sentencing jurisdiction. The lower courts have more limits in terms of what subject matter they are able to adjudicate upon compared to the High Courts. First, it started with the Penghulus Court. Section 95 of the Subordinate Court Act 1948 states that penghulu court shall have jurisdiction to try offences of a minor nature, enumerated in this Kuasa, and can impose a fine of not more than RM25 as it was stated in section 962 of the same act. The offender also has right to be tried by a Magistrate instead of section 95(3)3 .

2 3

Subordinate Court Act 1948 Subordinate Court Act 1948

Secondly, Majistrete court. There was exist two types of Magistrates court, First class and Second class. The jurisdiction of offences to be tried by the two are different. The jurisdiction of Second class Magistrate, contained within section 88 of the Subordinate Courts Act 1948, is with respect to trying offences punishable with a term of imprisonment not exceeding twelve months or punishable with fine only, and sentencing to a term of not more than six month jail or fine not exceeding RM1000 as stated in section 894. Besides that, the First class Magistrate of course, has much more in terms of sentencing and jurisdictional power, and these are provided for within sections 87 and 85 of the Subordinate Courts Act 1948 respectively. The First class Magistrate is vested with the power to try offences punishable with a term of imprisonment not exceeding ten years or punishable with fine only, as well as the power to sentence to a term of imprisonment not exceeding five years or a fine not exceeding RM10,000 or whipping not exceeding 12 strokes, or any combination of the three. There are also exceptions to the limitation on the First class Magistrates power. The proviso to section 87(1) 5for example, states that the Magistrate may award in excess of the power proscribed where any law gives him the authority, and some examples include section 118 of the Customs Act 1967, section 41 of the Dangerous Drugs Act 1952 and section 6(3) of the Betting Act 19536 where the Magistrate has power to impose a fine of not less then RM 20,000 and not more than RM 200,000 and up to five years imprisonment or both. The exercise of this power was seen in the case of Cheong Ah Cheow v PP7and the case of PP v Yap Sin Peng8 wherein the Magistrate had awarded the maximum RM20,000 fine in both cases respectively, and these decisions were upheld. Furthermore, section 87(2) gives the Magistrate further authority to punish in excess of his jurisdiction where the accused has previous convictions and provided that the Magistrate records his reasons for doing so. However, cases such as PP v Tengku Hitam9 and Abdul Wahab v PP10 given the said provision an unnecessarily restrictive construction by stating that the Prosecution has a duty to choose with care as to which court possesses the requisite sentencing jurisdiction sought by the Public Prosecutor before going on to prosecute his case, and that section 87(2) can only be
4 5 6 7 8 9 10

Subordinate Court Act 1948 Subordinate Court Act 1948 formerly the Betting Ordinance, 1953 or Ordinance No. 47 of 1953 [1985] 2 MLJ 257 [1986] 2 MLJ 66 [1962] MLJ 414 [1970] 2 MLJ 203

invoked when the case takes an unexpected turn and that the Magistrates basic sentencing powers are found wanting and furthermore knowledge of previous convictions can only be adduced after trial. The magistrate court, according to section 82 of SCA states that exercise the power and jurisdiction of the court within the local limits of whose jurisdiction the court is situated. Besides that, Section 8311 allow magistrate of either class to issue any warrant , summons or any other process of court within the limits of whose jurisdiction court is situated. They may also make order relating to adjournments, remands and bail, and transfers of proceedings to session court. The issue of detention order under section 117 of CPC is one of the common duties of a second class magistrete. Session Court is the highest court in the lower court. The session court has the jurisdiction to try all the offences other than offences punishable with death, it means it does not have the power to try cases which can impose death sentence. The High Court have both original and appellate jurisdiction. Original Jurisdiction12 means the case starts at the High Court for the first time. The High Courts have unlimited jurisdiction in all criminal matters where it have the original jurisdiction in criminal cases punishable by death penalty. Besides that, High Court also have Appellate jurisdiction where it can hear and determine appeals against the decision of the lower courts which is session court and magistrate court. The High Court have appellate and revisionary powers. Section 26 of the CJA provides its power to hear appeals from subordinate courts according to procedure laid down by any law for the time being in force. Besides that, section 3113 of the same act provides that, power of revision of High Court, in criminal proceedings. It also exercise his power to hear appeal and revisionary frm juvenile court as stated in section 14 of Judicature Act. Furthemore, section 35 of the CJA provides additional supervisory and revisionary power of the Hight Court over all teh subordinate courts. If it appears desirable in the interest of justice, the High Court may call for the record of any case and remove the same into Hig Courtor give to the subordinate court such direction as to the further conductof the same as justice may require.

11 12 13

Subordinate Court Act 1948 Section 22 of Judicature Act CJA

According to Art 121(1B)14, Court of Appeal have the jurisdiction to hear and determine appeals from High Court. According to section 50 of CJA, provides for the jurisdiction of the Court of Appeal to hear and determine criminal appeals. It is the final court of appeal from decision of the Hight Court and it may hear and determine any appeal against any decision made by the High Court in the exercise of its original jurisdiction and any decision made by the High Court in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by the session court. The court of Appeal exercise the power to corfirm, reverse or vary the decision of the High Court, or may order a retrial or may remit the matter with the opinion of the Court of Appeal there on to the trial court. It may also make such other order in the matter as to it may seem just, and may by the order exercise any power which the trial court might hav exercised. Furthemore, the Court of Appeal may quash the sentenced passed, confirmed or varied by the Hight Court and pass such other sentence warranted in law if it thinks that a different sentence should have been passed. Federal Court is the highest court in Malaysia. According to Art 121(1) of Federal Constitution, it provides that, Federal Court shall have appellate, original, and advisory role. Federal court has the Exclusive jurisdiction or original jurisdiction to determine any question regarding the validity of the law made by Parliament. Besides that, Federal court hears disputes on any questions concerning the Federal and State Consitution. Furthermore, Federal Court have the Appellate jurisdiction where it hear and determine appeals made by the Court of Appeal as stated under section 86 of CJA. After hearing the appeal, the Federal Court may confirm, reverse or vary the decision of the court of appeal, or may order a retrial or may remit the matter whit the opinion of the Federal Court thereon to the High Court. Moreover, Federal Court have advisory jurisdiction. The Agong can refer to the Federal court for advise and opinion on any question relating to the constitution. In addition, According to Art 18215, Special Court was established to hear action instituted by or against the YDPA or any of the state rulers.

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Federal Constitution Federal Constitution

(d)

local jurisdiction v extra territorial jurisdiction

Local Jurisdiction Section 121 of the CPC stated that : Every offence shall ordinarily be inquired into and tried by a court within the local limits of whose jurisdiction it was committed According to section 3 of CJA, defines the local jurisdiction of the High Court in Malaya as the territory comprised in the state of Malaya namely Johore, Kedah, Kelantan, Perak, Pahang, Negeri Sembilan, Melaka, Selangor, Penang , Perlis and Terengganu. And the local jurisdiction of the High Court of Sabah and Sarawak as the territory comprised in the states of Sabah and Sarawak. However, local jurisdiction was more clearly mention in the case of Tengku Abdul Muiz Shah & Ors16. The case is about there was an application for a transfer of a criminal case pending in the Johor Bahru magistrates court to the magistrates court in Kuala Lumpur. The issue therefore was whether the High Court in Kuala Lumpur has local jurisdiction to hear the application . In that case, Muhamed Dzaiddin J said that, each of the states or territory comprised in the High Court of Malaya or Sabah Sarawak is the local jurisdiction for each of the state or territorial High Court. There only be two local jurisdiction of the High Court, one in Peninsular Malaysia and the other is Sabah and Sarawak. However, this view may be fortified by examining section 76(2) and 59(2) of the SCA. Section 76(1) mentions the local jurisdiction of the magistrate court where it have the local jurisdiction in an area assigned to it. In no such area is assigned, it ahs jurisdiction over any criminal matter arising in any part of the local jurisdiction of the High Court. However the proviso stipulates that a magistrate shall have no jurisdiction to do this if the matter arose in any states in and for which he has not been appointed to be a magistrate , except in the manner provided in the CPC. The alternative view may supported by arguments of efficiency and speedy dispensation of criminal justice. It certainly would be easier for an offence committed in a state to be tried in same state also.

16

[1983] 2 MLJ 422

Extra territorial jurisdiction Extra territorial jurisdiction means where when the court have the jurisdiction to try a case which the conduct of offence happened in outside of Malaysia which beyond the local limits. Section 127A of CPC stated that, Any offences under chapter VI( offences against the state) and VIA(offences relating to terrorism) of the Penal Code, or any offence under any of the written laws specified in the schedule to the Extra Territorial Offences Act 1976, or any offence under any other written law the commission of which is certified by the Attorney General to affect the security of Malaysia committed, as the case may be as specified from (a) to (i). This section deals with jurisdiction for courts to try offence specified in the section committed outside Malaysia. This section gives jurisdiction to our courts to try offence specified in the section committed outside Malaysia. They are offences against the State, Official Secret Act 1972, Sedition Act 1948 and Security Offences. In such cases the section requires the sanction of a diplomatic officer or the public prosecutor before the offence can be tried. (e) reasonable suspicion v credible information Section 23 of CPC Permits any police officer or penghulu in Malaysia to arrest without an order from a Magistrate and without a warrant :(a) any person concerned in a seizable offenceor against whom a reasonable complaint has been made or credible information has been received or reasonable suspicious exists that he has been concerned in a seizable offence committed in Malaysia. This section does not limit or modify the operation of any other law empowering a police officer or penghulu to arrest without warrant. This section gives wide powers to the police to arrest provided there is credible information or reasonable suspicion. Reasonable suspicion was highlighted some of Malaysian cases. One of it is the case of Shaban &ors v Chong Fook Kam & Anor17. In this case, the Privy council drew a distinction between Prim Facie proof and reasonable suspicion. This was because the Federal Court had required Prima Facie proof before a valid arrest could be made.
17

[1969] 2 MLJ 219

Fact of case is about, two respondents in this case were arrested and detained on suspicion that one of them had driven a lorry laden with timber in a rash and dangerous manner resulting in a piece of wood falling off and hitting the widescreen of a car in which were two man, killing one of them. The respondent were arrested and brought to the police station. The corporal there informed them that they had to be detained further because of reasonable suspicion of the said offence. In this case18, Lord Devlin distinguished two material stages in this case. The first stage was when the corporal detained the respondent when he had reasonable suspicion that one of them had driven a lorry from which timber had fallen off. The second stage was when the police had reasonable suspicion that one of the respondents have driven in a rash and dangerous manner, that is, when the defense of alibi was discounted and the fact that the lorry did not stopped. Arrest had taken place on reasonable suspicion of the alleged offence at the second material time and this arrest was lawful. The arrest prior to this was unlawful because reasonable suspicion of the alleged offence was not present. Hence there was false imprisonment up until the time respondents were detained at the second material stage. Credible information means any information which in the judgment of the police officer, appear entitled to credit in the particular case. It not be a sworn information. A bare assertion without anything more cannot from the material for the exercise of an independent judgment and will not, therefore, amount to credible information. In the case of Hashim bin Samad v Yahya bin Hashim & Anor19, Harun J held that there was credible information against the plaintiff in that the informant had previously proved to be reliable and that information given by him had led to arrest, prosecution and convictions. The arrest without warrant was a lawful one.

18 19

Shaban &ors v Chong Fook Kam & Anor [1977] 1 MLJ 259

(f)

Information on oath that there is a reasonable cause to believe v Information received that there is a reasonable cause to believe. An oath is either a statement of fact or promise calling upon something or someone

that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact20. In criminal cases, the procedure there after a complain to police by the complainant was laid down in the Criminal Procedure Code in section 133 to 136. Prior to the amendments to section 133(1) of the CPC, when a magistrate took cognisance of an offence on complaint, he had to examine the complainant upon oath at once. At that time it was the general rule that, a complaint should be presented in person by the complainant himself so that he can be examined as soon as the complaint is presented. The examination on oath under the previous subsection (1) was elaborated in the case of Re Rasaiah Munusamy21. Int this case, it was held that the examination is sort of a preliminary enquiry but care must be taken not to inquire into the case for defence. A person complained against is not a party to the proceedings for he is not yet an accused person, so he is in position to claim a right to be represented. However, he is entitled to attend the proceedings like any member of the public tough he has no locus standi as a party and a magistrate may if he so wishes, examine or question him. But, again care must be taken not to convert the enquiry into a trial before a trial. It follows, therefore that merely to call the complainant to attest the complain on oath is not sufficient nor would it be sufficient to follow this up with an unrecorded and unsworn interview. The view is still applicable as the new section 133(1)(d) provides for the examination of the complainant upon oath too. In the case of Payne22 it was held that a magistrate may call the person complaint against when he proceed to hold an inquiry but if he does he should inform such person that he is not bound to make any statement unless he desires so to do. Because the purpose of the examination on oath is to ascertain veracity of the complaint and to avoid fabrication and malicious accusation, when an application for a summons or warrant is made by a police officer, a public officer acting on his official capacity, the examination on oath is not applicable.
20 21 22

http://en.wikipedia.org/wiki/Oath [1983] 2 MLJ 294 [1907] 10 SSLR 66

After the examination on oath, section 13423 applies. If the magistrate sees doubt on the truth of the complaint which he is authorized to take cognisance he may, when the complainant is examined, record his reason for so doubting the truth of the complaint and may than postpone the issue of process for compelling the attendance of the person complained against. He may then either inquire into the case himself or direct some police officer to make inquiries for the purpose of ascertaining the truth or falsehood of the complaint and report to him and the Public Prosecutor the result of such inquiries.

23

CPC