Initiation of Proceedings

The question mainly regards dispute governed under the law of criminal
procedure in Malaysia which is initiation of proceedings.

The issue is whether _______________

Once complaint has been made and police had taken reasonable steps with
regards to the case, the case will now be brought forward Magistrate in order to initiate
necessary proceedings with regards to the case.

Establishing Cognisance (Section/Complaint/Definition/Credible/Discretion) (SCD CD)

Firstly, establishing cognizance. By virtue of Section 128 of CPC, it has been

stated that a Magistrate may take cognizance of an offence by way entrenched under
the provision. Cognizance in general can be defined as knowledge or awareness of
such matter, and with regards to criminal offence, Magistrate take cognizance of offence
in order to initiate proceedings governing the case.

Firstly, complaint. As provided under Section 2 of CPC, complaint can be

defined as allegation made orally or in writing to Magistrate with a view that action will
be taken upon the person of whom complaint was made. By virtue of Section 128(a) of
CPC, it is clear that Magistrate may take cognizance in a situation of which complaint
has been made directly to the magistrate or complaint which is directed by lodging
police report and subsequently referred to the Magistrate.

With regards to the complaint, the Magistrate must warn himself before initiating
any proceedings, that the complaint founded on the belief from information of a credible
witness, or surrounding facts is sufficient, reasonable and lead to probable cause to
impute the guilt of the person complained of. In PP v Mah Chuen Lim, the court was of
the opinion that the application for initiation of proceedings should only be allowed to be
heard if there exist reasonable complaint and in the absence of such complaint, no
action can further be taken.

Adham Hensem
 However, despite receiving reasonable complaint, discretion to examine the
complainant and initiate proceedings still lies within the Magistrate. By virtue of Section
128(1) of CPC, it is clear that the phrase ‘may take cognizance’ is discretionary in
nature, of which in Tan Hoe Watt v PP, it has been established that only after the
Magistrate had taken cognizance of the complaint, then only he shall examine the
complainant on oath.

Examination of Complainant (Vital/Police/Date/Notice/Direct/External) (VPD NDE)

Secondly, examination of complainant. After the magistrate had satisfy that he

shall take cognizance upon receiving complaint with regards to commission of an
offence, the next step is for him to examine the complainant. Examination is vital in
order to establish the truth of the complaint and conduct necessary inquiry, before it is
reasonable to establish and initiate a case. In Re Rasiah Munusamy, it has been
stated that merely inquire the complainant to attest the complaint upon oath is
insufficient and Magistrate cannot proceed to hear the case merely because the
complainant has testify under oath but yet to be examined.

However, if the Public Prosecutor had direct the police to conduct investigation
based on the complaint at any stage of examination; even before examination is
conducted per Section 133(1A) of CPC, the Magistrate shall postpone or not proceed
with examination of the complainant per Section 133(1B) of CPC.

First, date of examination. By virtue of Section 133(1)(a) of CPC, it has been

established that the Magistrate has the duty to hold examination upon complainant by
setting up specific date in order to conduct such examination. However, in pursuance of
Section 133(2) of CPC, examination is not required if the complainant is police officer
or public servant acting in his official capacity. Examination is only required if the
complainant is private person for private prosecution (non-seizable offences).

Second, notice of examination. With regards to examination, after setting up

specific date, the Magistrate has the duty to serve notice to the Public Prosecutor at
least 7 days before the date of examination, as provided under Section 133(1)(b) of

Adham Hensem
CPC. If notice is yet to be given, Magistrate cannot conduct any examination, as per
Section 133(1)(c) of CPC.

Third, direct examination. With regards to examination of complainant, the

Magistrate shall comply with several procedures provided per Section 133(3) of CPC.
First, examination under oath. Second, examination be reduced in writing and further
signed by the complainant and Magistrate. (Oath/Writing/Signed) (OWS)

In the course of examination, the Magistrate may take external factor and result
of police investigations before delivering his decision on whether to initiate the
proceedings and issue process with regards to the allegation of offence, or not, as
stipulated in Lim Thian Huat v Fozdar.

Result of Examination (Issue/Postpone/Dismiss) (IPD)

There are several outcomes that the Magistrate shall consider in exercising his
judicial duty. Firstly, issue process. Once it is satisfied that there is a firm ground in
establishing a case; or in simpler word the Magistrate is satisfied that there is prima
facie case, he has the power to issue a summons or warrant requiring the attendance of
the person complained against to appear before the court at specific date, provided
under Section 136 of CPC.

On whether to issue summons or warrant, the Magistrate shall take into account
the nature of the offence. Per Section 2(1) of CPC, it has been distinguish between
summon case and warrant case. However, apart from that, the Magistrate shall also
consider external factor per Section 47 of CPC, such as possibility that the person
complained against might be absconding and fail to appear before the court. In Karpal
Singh v PP, it has been stated that in issuing warrant, the court shall have good reason
in doing so or else such warrant will have no effect at all. Summon shall be made per
Section 34 & 35, while warrant shall be based on Section 39 & 43 of CPC.

Secondly, postponement of issue of process. As provided under Section 134(1)

of CPC, in the event that; although it might seem to have prima facie case but it cast
doubt upon the Magistrate, specifically addressed as that he sees reason to doubt the

Adham Hensem
truth of complaint, Magistrate has the power to postpone issue of process and process
in order to enable further inquiry on such matter. In the event that further inquiry need to
be conducted, similar process need to be complied with including issuing similar notice
to conduct further examination to the Public Prosecutor, per Section 134(2) of CPC.

Thirdly, dismiss of the complaint. If there is no reasonable and sufficient ground

to initiate proceedings after receiving the complaint; for example the complaint is not
true, even after inquiry has been conduct in pursuance of Section 134 of CPC, the
Magistrate shall dismiss the complaint and record his reasoning as provided under
Section 135(2) of CPC. In Re Rasiah Munusamy, the court was of the opinion that the
complaint was made only per plain allegation and the evidence tendered was plainly
hearsay hence the complaint was dismissed. Apart from that, if the Public Prosecutor
had inform the Magistrate that prosecution shall not proceed, the Magistrate has no
option but to dismiss the complaint, per Section 135(3) of CPC.

Right of Private Person to Prosecute

 Section 380 of CPC: if the offence is committed against his person or property
 Also has right to appeal under Section 307 of CPC, as seen in R v Schefelaar.
 May appeal in his own name as appellant, as seen in Sarikei District Council v
Hamzah Kiprawi

Adham Hensem