Initiation of Proceedings

Sec. 128: A magistrate may take cognisance of an offence through any of the methods listed
under limb (a) to (d).
- A magistrate is said to ‘take cognisance’ when he takes legal notice, or applies his
mind to the suspected commission of an offence before taking any judicial action on
it, but with a view of deciding whether or not he should take such action.
When a magistrate takes cognisance of an offence upon receiving a complaint (under Sec.
128(a)), this refers to situations where:
- A complaint is made directly to the magistrate by an aggrieved party (including a police
officer or public servant)
- A private person has lodged a police report and is advised to refer the matter to a
magistrate for private prosecution under Sec. 108(1) where the offence is non-
seizable.

- A complaint must be founded on the information of a credible witness of facts

imputing guilt upon another.
Sec. 133(1): On an application made for the issue of process to initiate criminal proceedings
against some person, the magistrate shall hold an examination after serving due notice on
the Public Prosecutor in writing at least seven clear days before the examination.
- Sec. 133(2): An examination of the complainant is not required where the application
is made by a police officer or a public servant acting in his official capacity.
- Thus, the provision is only applicable where a complaint is made by a person for
private prosecution (in cases of non-seizable offences).
Re Rasiah Munusamy: The very first thing the magistrate must do upon receipt of a complaint
under Sec. 133 is at once to examine the complainant upon oath and reduce the substance
of the examination into writing which shall be signed by the magistrate and the complainant.
- Merely to call the complainant to attest the complaint upon oath is not sufficient nor
would it be sufficient to follow this up with an unrecorded and unsworn interview.
- A person complained against is not a party to the proceedings for he is not yet an
accused person and is in no position to claim a right to be represented. However, he
is entitled to attend the examination like any member of the public though he has
no locus standi as a party, and a magistrate may examine or question him.
- There is no doubt that the requirements outlined under the provision are mandatory,
their object being to enable the magistrate to decide on the reliability of the
complaint which he will depend upon to decide whether or not a process should issue.
- In this case, there was not even a semblance of compliance with the requirements,
causing the issue of a warrant of arrest by the magistrate to have been made without
jurisdiction and was, therefore, void.
After having conducted an examination in accordance with Sec. 133(1), a magistrate may:
- Postpone issue of process and conduct an inquiry
- Where the magistrate finds that he has reasons to doubt the truth of the
complaint (Sec. 134)

- Dismiss the complaint

- Where the magistrate finds that there is no sufficient ground for proceeding,
in which case he may dismiss the complaint, but must provide his reasons for
doing so (Sec. 135)
- Re Rasiah Munusamy: Where the complainant alleged that his wife had been
enticed away from him for sexual intercourse and that she was being kept in a
hotel in Penang by deceit, the court dismissed the complaint as it found that
the complainant had no personal knowledge of the allegations which were
worthless as evidence being plainly hearsay, and that there was no disclosure
of the grounds of belief.

- Issue process
- Where the magistrate is satisfied that a prima facie case is disclosed by the
complaint, he may exercise his discretion to issue a summons or warrant
compelling the attendance of the person complained against (Sec. 136)
- He is not bound to issue a warrant for he clearly has a discretion, if he thinks
fit, to issue a summons for causing the accused to appear in court.
- In exercising his discretion, the magistrate will take into account the nature of
the offence, and the probability of the person complained against absconding,
where the immediate issue of a warrant may lead to such person being
apprehended in incriminating circumstances.
Role of the Public Prosecutor:
- Upon being served:
- A notice of examination (Sec. 133), the Public Prosecutor may appear and
assist at the examination (Sec. 133(1)(e))
- A notice of inquiry (Sec. 134), the Public Prosecutor may appear and assist at
the inquiry (Sec. 134(2))

- The Public Prosecutor may also:

- Direct the police to investigate the offence complained of, upon which the
magistrate shall not proceed with the examination (Sec. 133(1B))
- Inform the magistrate that no prosecution shall proceed, upon which the
magistrate shall dismiss the complaint (Sec. 135(3))
Summons and Warrants
In order to issue the proper process to compel the attendance of an accused person, it is
incumbent upon the court to firstly determine whether the offence falls under a summons
or warrant case.
- Sec. 2(1), ‘summons case’: A case relating to an offence and not being a warrant case
- When the court issues a summons, it will fix a return date for mention in court
of the summons.
- When service of the summons cannot be effected by the fixed date, a fresh
date is fixed and the procedure is repeated until the summons is finally served
or cancelled.

- Sec. 2(1), ‘warrant case’: A case relating to an offence punishable with death or with
imprisonment for a term exceeding six months
- Sec. 38(2): A warrant shall remain in force until it is cancelled or executed.
- Sec. 41: In executing a warrant, the substance of the warrant must be notified
to the person to be arrested, and if required a copy of the warrant must be
shown to him.

- R v See Kah Loon: Where the police officer had obtained a warrant of arrest,
but did not have the warrant with him when he arrested the suspect as he had
left it at the station, the court found the arrest to be unlawful.
The choice of process that shall, in the first instance, be ordinarily issued, is in accordance
with Column 4 of the First Schedule, unless provided for under a specific provision.
However, under Sec. 47: The court has the power to issue a warrant instead of a summons
in an offence which is a summons case upon satisfying itself that
- (a) There are reasons to believe that the suspect has absconded or that the suspect
will not obey the said summons, or
- (b) The suspect fails to appear without any reasonable excuse offered where the
summons is proved to have been duly served in time

- Karpal Singh v PP: The offence in this case was for being a member of an illegal
assembly punishable by Sec. 27(8) of the Police Act 1967, which carries the penalty of
a fine not exceeding RM500 or imprisonment for a term not exceeding six months or
both. It is clear that this was a summons case and not a warrant case and therefore a
summons should in the first instance issue and not a warrant. However, where a
warrant was issued instead, the issue was whether or not it was issued legally.
- The application for the warrant merely alleged that an investigation conducted
pursuant to a police report revealed that the applicant was involved in the
alleged unlawful assembly and that a warrant was required to secure his
attendance in court to answer to the charge. No reasons were given as to why
the warrant and not a summons was required.
- There was neither any indication that the applicant had absconded or that
he would not obey a summons, nor were there any reasons given by the
learned magistrate in issuing the warrant.
- It is the cardinal principle of law that in criminal cases the provisions of the
law must strictly be followed. In the present case, where the offence
concerned is a summons case, ordinarily a magistrate may only issue a
summons. He cannot issue a warrant unless there is good reason for him to
do so. In the absence of any good reason, the issue of a warrant would be
wrong and illegal, thus rendering the applicant’s arrest illegal.
Charge: Duplicity
Sec. 163: For every separate offence, there shall be a separate charge.
- Duplicity occurs where more than one offence is incorporated into one charge.

- Alternative offences: It is not permissible to include alternative offences in one single

charge as the accused would not be able to identify what he is charged with.
- Lee Chin Kee v PP: Where the charge read “knowingly concerned in conveying
or dealing in unaccustomed goods”, including two offences in the charge
caused it to be bad for duplicity.

- Distinct offences: A charge which includes two distinct offences would also be bad for
duplicity.
- Rainto Sumiran v PP: Where the accused was convicted on two charges of
armed robbery, the court found that the prosecution was right in preferring
separate charges. Although the events arose out of the same robbery, the act
of exhibiting the firearm against each of the victims, and in turn, taking their
valuables, clearly formed two distinct offences. Thus, preferring a single charge
would be bad for duplicity.

- Khor Ah Kah v PP: The charge for two distinct offences, namely the use of
criminal force on a police constable, and the fact that it was done with
intention to deter the police constable from discharging his duty, was
permissible and not bad for duplicity as they were related to one single
transaction.

- Mohd Hanafi Ramly v PP: Where multiple charges of committing sexual

offences against a pupil made against the accused were bad for duplicity, the
court treated it as an irregularity curable under Sec. 422. Although there were
more than three distinct offences tried at one trial contrary to Sec. 164, their
proximity and unity of purpose made them part and parcel of the same
transaction as required under Sec. 165, thus allowing the five offences in three
charges to be tried at one trial.
- Latent duplicity: Where, on the face of the charge, the commission of only one offence
is indicated, but upon evidence adduced, more than one offence is disclosed to have
been committed.
- Tai Chai Keh v PP: Where the appellant was charged for unlawful possession of
a revolver and ammunition, the court found that there was ambiguity and
latent duplicity in the charge. On the facts, there were allegations of two
offences, unlawful possession of firearm and unlawful possession of
ammunition. Both offences were distinct from one another as the firearm and
ammunition were found in different places.
 - Mahendran Manikam v PP: The effect of duplicity is that it may be treated as a mere
irregularity curable under Sec. 422 unless it is impossible for the accused to know
with certainty what offence he is charged with.
Exceptions to duplicity:
- Criminal breach of trust and criminal misappropriation
- Sec. 153(2): When an accused is charged with criminal breach of trust or
criminal misappropriation, it is sufficient to specify the gross sum of the
offences, provided that the time between the first and last offence does not
exceed one year.
- Sheikh Hassan v PP: The appellant was charged for criminal breach of trust in
respect of $23 paid to him on 23 separate occasions within the space of a year.
To this charge was attached “particulars”, namely, the names of twenty-three
persons from each of whom he received $1. When the criminal breach of trust
is of a gross sum taken between dates not more than one year apart, it is one
offence though made up of many items taken on many occasions.

Amendment of Charges
There are three provisions which apply in relation to the amendment of charges:
- Sec. 173(b): An amendment of the charge at the stage when it is read and explained
- The court may consider preliminary objections to the charge before the trial
- Sec. 173(h): Where the court finds that a prima facie case is made out on a different
charge.
- PP v Ishak & Ors: Subordinate courts have a duty to consider the charge and
amend it if necessary. However, it is not incumbent for the court to search the
law for offences which may have been committed.
- Sec. 158: The court may alter or add any charge at any time before the judgment is
pronounced.
- PP v Heng You Nang: It is for the prosecution to decide what their real
complaint is and to frame their charges accordingly or submit amendments
and apply to court to exercise its power under Sec. 158.
- If the prosecution is unable to reach a conclusion as to the proper
charge, it is improper to criticise the court for failing to carry out their
functions.
- However, in a clear case, a magistrate ought to alter the charge to fit
the proper facts.

- Mohamad Yazri Minhat v PP: In any event, amendments of a charge should not cause
prejudice to the accused or result in an injustice to him.
Procedure in amending a charge (Secs. 159 & 162):
- Read and explain the charge:
- Narain Singaray v PP: Failure to read the amended charge and explain it to the
accused is a grave irregularity.
- Ng Terk Chai v PP: It is a procedural error which occasions a failure of justice
not curable under Sec. 422.

- Call on the accused to plead to the amended charge:

- Chiew Poh Kiong v PP: There should be a trial when an accused pleads not guilty
to an amended charge.

- Allow the recalling of witnesses:

- Subramaniam Shanmugam v PP: Upon an amendment made, the prosecutor
and accused shall be allowed to recall and examine any witness who may have
been examined.
Time to amend:
- Lew Cheok Hin v R: The most ideal time to amend the charge is at the close of the
prosecution’s case when the court is in the best position to decide exactly what is the
case the accused is required to meet.

Charges & Trials

Sec. 163: For every distinct offence, there shall be a separate charge, and each charge will be
tried separately.
- However, the exceptions to the general rule (Secs. 164, 165, 166 and 170) allow for:
- The joining of more than one charge at one trial
- The holding of a joint trial of two or more persons
Joinder of Charges
The trial of more than one charge against one accused person is permissible where:
The offences committed are of the same kind (Sec. 164)
- Sec. 164(1): An accused person may be charged and tried at one trial for not more
than three offences of the same kind committed within 12 months in respect of the
same or different persons.
- Sec. 164(2), ‘same kind’:
- Punishable with the same amount of punishment under the same provision
of the Penal Code
- Offences punishable under Secs. 379, 380, 382, 392, 393, 394, 395, 396, 397
- An offence under any provision of the Penal Code or of any other law, and an
attempt to commit any such offence when such an attempt is an offence.
 - Any joinder of charges where the offences committed were not of the same kind or
were spread over a period longer than that permissible would be illegal.

- R v Tay Thye Joo: A joinder of charges was allowed where the accused was, at one trial,
charged with three separate offences of cheating under Sec. 420 of the Penal Code,
all of which were committed at three different points of time within the month of
June 1932 in respect of different sums of money.

- Azahan Mohd Aminallah v PP: Where the accused was charged with committing four
separate acts of rape over a period of five years, the court found that there was a
violation of Sec. 164(1), thus ruling that the trial was a nullity and must be quashed.
The offences were committed in the same transaction (Sec. 165(1))
- The accused person may be charged and tried at one trial when a series of acts that
he committed are so connected together as to form the same transaction.

- Amrita Lal Hazra v Emperor: It is not possible to frame a comprehensive formula of

universal application to determine whether two or more acts constitute the same
transaction; but circumstances which must bear on the determination of the question
in an individual case may be easily indicated: they are proximity of time, unity or
proximity of place, continuity of action and community of purpose or design.
- PP v Ridzuan Kok Abdullah: To construe whether a number of acts may be so
connected together as to form part of the same transaction, it is essential to show
community of purpose or design and continuity of action.
- Where both offences (drug trafficking and possession) were committed at the
same time and same place, there was continuity of action and community of
purpose or design, thus forming part of the same transaction. The court found
that it would be a miscarriage of justice not to order a joinder of charges as the
trial could be expedited where the prosecution would be calling the same
witnesses for both offences, thereby saving time and cost.
Joint Trial
The general rule under Sec. 163 dictates that every person shall be tried separately.
However, more than one accused person may be charged and tried together at one trial
where:
More than one accused person committed the same offence, or different offences, in the
same transaction (Sec. 170(1))
- Amrita Lal Hazra: What constitutes ‘same transaction’ is that there should be
proximity of time, unity or proximity of place, continuity of action, and continuity of
purpose or design.
- Same offence:
- Jayaraman & Ors v PP: Where eight accused persons were jointly charged with
four charges of culpable homicide not amounting to murder, the court found
that the four alleged offences were committed in a series of acts so connected
as to form one transaction, in that they were committed at the same time,
same place and with a common intention, thus allowing the case to fall within
the exception contained in Sec. 170 enabling them to be tried together.

- PP v Low Kian Boon & Anor: The accused persons’ joint presence at the scene
and their participation in the murder could be inferred from the injuries
inflicted on the deceased coupled with their flight from the scene, which
supported the existence of a common intention.

- Saw Chiang Guan & Ors v PP: The appellants were jointly tried on a charge
under Sec. 5(3)(a) of the Betting Ordinance, 1960 for carrying on their
bookmaking activities in the same premises, but there was no evidence to
show that they were jointly concerned in conducting the bookmaking
operations. Held: The joint trial of the three appellants was illegal as the
presence of two or more persons in the same premises for the conduct of
their bookmaking activities does not mean that they are concerned in the
commission of the same offence. This can be distinguished from a case where
two or more persons enter the same premises for the purpose of committing
a robbery. It would be clear from the surrounding circumstances that such
persons are jointly concerned in one offence of robbery and they can be
jointly charged and tried for it.

- The presence of a common intention where the same offence was committed:
- Sec. 34, Penal Code: When a crime is done by several persons, in
furtherance of the common intention of all, each person is liable for
that act.
- The provision implies that there was a pre-arranged plan in
existence. Thus, in order to convict several accused persons for
the same offence, it must be proven that the crime was done in
concert pursuant to such plan.
- PP v Ayyavoo Subramaniam & Anor: There must be a prior meeting of
minds to form the pre-arranged plan to commit the offence of the
interval prior to the attack.
- Tarmizi Yaacob & Ors v PP: Planning must precede the act of
committing the offence.
 - Different offence:
- Distinct offences may be a “series of offences of the same or a similar
character” or offences committed in the “same transaction”.

- Peter Tham Wing Fai v PP: “Distinct” means “not identical”. Two offences
would be distinct if they are not in any way interrelated, but if there is some
interrelation it would depend on the circumstances of the case in which the
offences were committed, whether there is only one transaction and only one
offence was committed. A series of offences of the same or a similar character
could also be distinct, as could offences committed in the same transaction.
- The appellant in this case forged 18 separate share certificates,
individually numbered, as well as 18 corresponding “blank transfers”
on two occasions. The forging of each share certificate and each
transfer form stands separately by themselves as separate and
completed offences with the same punishments. The forgery of each
document, although completed within seconds of the next to be
forged, was a separate act from the others and never depended on the
completion of the others before being complete in itself. The only
connection between the forgeries was the proximity in time and a
continuity of purpose that could qualify them as offences committed
within the ‘same transaction’.

Persons accused of theft, extortion, criminal breach of trust, cheating or criminal

misappropriation may be tried with persons accused of receiving, or retaining, or assisting
in the disposal or concealment of such property (Sec. 170(2))
- The stolen property received, retained, disposed or concealed by the second accused
must have been transferred through any of the offences listed committed by the first
accused.
- However, a joint trial would be improper where the persons are charged with the
offences at different times and different places.
- Chan En Cheng v PP: Where both accused persons were charged in a joint trial,
even though the properties were the subject of the same theft, both offences
were committed at a different time and different place. On that basis, the court
held that the joint trial conducted at the trial court was illegal.
- Thus, in order for the provision to apply, it is still a necessity for the offences
to form part of the same transaction particularly in regards to proximity of time
and place, as well as continuity of action and purpose (Amrita Lal Hazra).
Bail
- Yusof Mohamed v PP, ‘bail’: Security taken from a person to appear on a fixed date
before a court.
Bailable offences:
- An offence shown as bailable under Column 5 of the First Schedule or which is made
bailable by any other law.
- Sec. 387(1): A person accused of a bailable offence shall be released on bail.
- Mohd Jalil Abdullah v PP: The term ‘shall be released on bail’ is mandatory. By
virtue of the provision, a person accused of a bailable offence is entitled to bail
as of right. There is no question of any discretion in granting bail and the court
is bound to comply with the provision.
- In this case, even where the bail had been increased, both the
applicants were absent. As a result, warrants for their arrest were
issued. The learned magistrate refused to accept their explanations and
subsequently revoked bail. The applicants’ application for bail was
refused. On appeal, the High Court ruled that, where a release on bail
was mandatory, upon revocation of the previous bail, the magistrate
should have granted a new bail with sufficient sureties as he deemed
fit.

- Despite the offence proceeding by way of summons, the court must still offer bail.
- Michael Raymond Taylor v PP: An accused who is served with a summons and in
obedience thereto appears in court falls within the ambit of Sec. 387(1). Each limb
under the provision must be read disjunctively as referring to a situation where a
person is arrested without warrant or is detained, or a person who is served with a
summons and, in obedience to the summons issued, “appears” in court.
- The accused was summoned to answer two charges under the Companies Act
1985, and upon pleading not guilty, was subsequently released on bail of
RM150,000 pending trial. The decision of the magistrate to furnish bail was
correct where, on appeal, the High Court stated that there is no express
requirement that an arrest is a precondition for bail in bailable offences. The
application of the provision which orders the court to furnish bail cannot be
strictly confined to persons who have been arrested or where a warrant of
arrest was issued.
Non-bailable offences:
- An offence where the accused may be refused bail. It is not an absolutely unbailable
offence as the court is given the discretionary power whether or not to grant bail.

- Sec. 388(1): The accused would not be released on bail if there appears reasonable
grounds for believing the he has been guilty of an offence punishable with death or
imprisonment for life.
 - However, this is subject to the proviso to Sec. 388(1): Any person under 16 or any
woman or any sick or infirm person may be released on bail.
- PP v Latchemy: Where the accused was charged with murder, her application
for bail on the ground that she was a mother of 10 children and the youngest
of them was still breastfeeding fell far short of being exceptional, and thus, her
application was refused.

- Che Su Daud v PP: Where the accused was charged with drug trafficking and
subjected to life imprisonment, the court granted bail as she was a mother of
6 children, one of whom was a four-month-old baby that had to be with her in
prison as she was still breastfeeding. The court distinguished this case from
that of Latchemy’s, as the punishment involved was not the death penalty.

- PP v Dato’ Balwant Singh: Where the accused was released on bail despite
being charged with murder as he was over 80 years old and in an extremely
fragile condition based on his medical report.
Where bail is at the discretion of the court (non-bailable offences), there are several factors
that the court takes into consideration in exercising such discretion.
- PP v Wee Swee Siang: Reasonable grounds for believing whether accused is guilty;
nature and severity of offence; severity and degree of punishment; danger of offence
continuing or repeated; danger of witnesses tampered with; opportunity for accused
to prepare for his defence; likely period of detention of accused and probability of
further delay (non-exhaustive)

- PP v Dato’ Seri Anwar Ibrahim: The character, behaviour, means and standing of the
accused; where the accused is suffering from an illness that would not be properly
treated under detention; absence of any danger of the accused absconding or leaving
the jurisdiction if bail were granted.
The exercise of the court’s discretion in favour of bail would also take into consideration:
Quantum of bail:
- Sec. 389: The amount of every bond shall be fixed with due regard to the
circumstances of the case, but shall not be excessive.
- Manickam v PP: The amount of every bail bond should not be excessive, instead
reasonable in the circumstances of the case as being sufficient to secure the
attendance of the accused. An excessive bail bond may defeat the granting of bail as
the accused may find difficulty in getting a bailor.

- Zulkifflee Hassan v PP: The accused was charged with CBT involving a sum of RM6.7
million. The Sessions Court allowed him bail in the sum of RM1 million in two sureties
and impounded his passport. On appeal, the High Court ruled that bail is not intended
to be punitive and excessive bail ought not to be required. In this case, the bail of
 RM1 million had the effect of punishing the accused before he was proven guilty of
the charges against him, which was evident from the fact that he was unable to find
the two sureties to secure such bail.

- Soo Shiok Liong v PP: The accused was charged with CBT involving a sum of RM5
million. Where the Sessions Court set bail at RM1 million in two sureties, but failed to
state its reasons for doing so, the High Court found the amount of bail to be arbitrary
and contrary to Sec. 389, especially where the accused had been cooperative. Thus,
the bail was reduced to RM600,000 in two sureties.

- Low Chit Bah v PP: The accused had 41 charges for abetment of conspiracy to cheat
involving a sum of approximately RM4 million, and bail was set at RM1 million in two
sureties. An application was made to reduce the sum to RM500,000 on the ground
that there was difficulty in obtaining instructions from the accused whilst he was in
custody. The application was opposed as it was revealed that the accused, a
Singaporean citizen, had travelled on a forged Philippines passport and also had a valid
passport issued by the Republic of China. The court, in considering that there was
every likelihood that the accused would abscond from Singapore to evade trial if bail
was reduced, refused the application. Having regard to the serious charges and the
amount involved, the bail of RM1 million in two sureties was not excessive.

- Mohan v PP: It is lawful for a court to require security (in the form of a fixed deposit
with a bank or land title) to be furnished by a bailor when executing a bail bond.
Sufficient sureties:
- Sec. 390(1): The court in granting bail will stipulate the amount of bail and a sufficient
number of sureties.
- The court must be satisfied that a proposed surety has the capacity to ensure the
attendance of the accused in court when required.

- Chang Khee Chien v PP: The two accused were released on bail in the sum of RM500
with one surety. There were several postponements of their case and on each
occasion the accused had duly appeared in court. When the case was mentioned again
the two sureties were not present in court and because of their absence the
magistrate ordered the two accused to be remanded. Held: It is not necessary for any
person who stands as a surety to be personally present himself in court on each and
every occasion that the accused has to attend court. A surety only gives an
undertaking that the accused shall attend court to answer the charge on the date
specified in the bail bond and continue to attend until otherwise directed by the
court. But nowhere is it stated in the bail bond or in any provision in the Code that the
surety must also be present when the accused is required to attend court.
 - Sec. 393: A bailor may apply to be discharged as surety, upon which the magistrate
shall call upon the accused to find other sufficient sureties, failing which, he may then
be committed to custody.

- Royaya Abdullah v PP: An application for a discharge may be made at any time for
whatever reason or for no reason at all other than the desire to be relieved from
further liability. Little demonstration is needed to prove that the existence of reasons
or lack of reasons is immaterial. Thus, it would be wrong for a court to infer from an
application of discharge that there must be circumstances raising the likelihood of the
accused absconding.

- Valliamai v PP: An application made by a bailor to be discharged as surety should be

attended to promptly. In this case, it was an oversight by the court in not dealing with
the appellant’s application there and then, and proceeding to an order of forfeiture of
the bail bond.

- Mohan v PP: Despite the accused having been released upon execution of the bond,
the bailor sought for a reduction in the bail bond. A bailor is not entitled in law to
seek a variation of the amount of bail in respect of an executed bond. The proper
course to be adopted by the bailor was to follow Sec. 393 and apply to the court to
be discharged from the bond. If she produced the applicant before the court at the
time she applied to be discharged, the question of forfeiture of her bond would not
arise and the bond that she had executed would be discharged.
Conditions of bail (non-bailable offence):
- PP v Dato’ Mat: Both Secs. 387 and 388 do not have any specific provision for the
imposition of conditions. However, when discretion is given to the court to refuse or
grant bail, that discretion in itself implies a discretion to grant bail subject to certain
conditions. But, when there is no discretion to refuse bail, the question of imposing
conditions does not arise. Thus conditions can be included in a bail bond issued
pursuant to Sec. 388, but not to Sec. 387 as the latter section gives no discretion to
the court to withhold bail when the person arrested is prepared to provide such bail.
- In this case, the respondent was charged for CBT and was offered bail in the
sum of RM400,000 in two sureties on the condition that he surrenders his
international passport to the court. He applied for an order for the release of
his international passport to enable him to make a business trip to Indonesia.
Held: It is not illegal to impose fair and reasonable conditions and in
particular the condition requiring the accused to surrender his passport,
appropriate to the securing of the accused’s subsequent attendance in court.

- Lim Kiap Khee v PP: In non-bailable offences, the court has the absolute discretion
under Sec. 388 whether to allow bail or to refuse bail, except in cases punishable with
death or imprisonment for life. In granting bail, the court may, in addition to stating
 the amount of bail and the number of sureties, impose an additional condition
requiring the accused person to surrender his passport.
- If the court decides that one of the conditions of bail is to require the accused
to surrender his passport, it is immaterial whether the accused is a citizen of
this country or a foreigner, or whether he is holding a Malaysian passport or
a passport issued by a foreign government.
- When the court lays down the conditions for bail, it is left entirely to the
accused whether to comply with the conditions or not. The choice is entirely
his. If he does not want to surrender his passport, then he opts to remain in
custody.
- However, the order must be one to “surrender” his passport and not to
“impound” the passport. Where the Sessions Court made an order impounding
the accused person’s passport, the order was found to not be within the scope
of conditions of bail under Sec. 388. Where “impound” merely means to “seize
or secure”, the order was held to not be valid.

- PP v Dato’ Balwant Singh: Other acceptable conditions imposed as part of the terms
of bail include:
- To surrender the accused’s firearm and licence to the police
- To report to the police once every two weeks
- To remain indoors from 6pm to 8am
- Not to be present at any open public place or public functions aside from
religious or family activities
Reapplication for bail
- If bail is refused, an accused person may elect to appeal to the High Court under
Sec. 394 or apply to a High Court judge to exercise his discretion under Sec. 389 to
grant the accused bail.

- Sec. 389: A judge may, in any case, whether there is an appeal on conviction or not,
direct that any person be admitted to bail.
- An application made under this provision is by way of Notice of Motion
supported by an affidavit, with speed being the essence of the application.

- Sec. 394: Any person aggrieved by any order may appeal to the High Court, which may
confirm, vary or reverse the order of the inferior court.
- Compared to Sec. 389, Sec. 394 allows the High Court to reverse the order of
the Subordinate Court.
- However, it is neither a simple nor a speedy procedure, and is therefore not
the best available option in an urgent situation.

- Sulaiman Kadir v PP: The difference between the two procedures is that:
- If it is an appeal under Sec. 394, it will take a longer time to be heard because
there has to be a Notice of Appeal and the Subordinate Court will have to
 state its reasons for refusal before the Petition of Appeal can be filed and
eventually be heard
- If it is an application under Sec. 389, it can be made immediately after refusal
without notice to the Subordinate Court, and the application can even be
heard by the High Court on the same day, or very soon thereafter, where
speed is the essence of the application
- If a person should not be kept in custody for a moment longer than is
necessary, the speedy procedure of Sec. 389 should be chosen.
- The provision gives the High Court absolute discretionary powers to
vary bail from the time of the arrest until the time of conviction.
- Sec. 394, on the other hand, is intended to deal with matters not provided for
under Sec. 389, for example where a person has been admitted to bail contrary
to Sec. 388(1).

- However, regardless of which provision is employed, when bail is refused by the High
Court, there is no recourse available to the accused.
Forfeiture of bail sum
- Where bail has been granted, the effect of bail is that the accused has to make an
appearance at the specified time and place.
- Sec. 390: When the accused is released on bail, it is upon his sureties to ensure that
he makes an appearance as required.

- The failure of the accused to attend court will entail proceedings to forfeit the bail
sum posted by the bailors as under Sec. 404(1), where there are two requirements:
- It must be proven to the satisfaction of the court that the bond has been
forfeited whereupon the court has to record the grounds of such proof.
- Where the court is satisfied that the bond has been forfeited, it may call upon
the person bound by such bond to pay the penalty or show cause as to why it
should not be paid.

- Upon the non-attendance of an accused person, the court shall initiate the
proceedings through a notice in Form 42 of the Second Schedule issued to the sureties
specifically requiring them to pay the penalty or show cause within a specific number
of days as to why payment should not be enforced against them.
- PP v Tanggah (No 2): In the absence of such notice, any order of the court to
pay the bond amount cannot stand.

- After initiation of the proceedings, there are several procedural steps to be observed
by the court:
- The court must take evidence of bond and the sureties, whereby the actual
bond must be produced and there must be evidence that the bailors were
indeed the persons who had entered into the bond.
 - Such evidence must be given by specific witnesses, namely the
magistrate, President or Registrar who granted the bail.
- The sureties must be given the opportunity to cross-examine the witnesses
and to show cause as to why the bond should not be forfeited.
- The sureties should be invited to go into the witness box and state their case,
if they wish, by calling any further evidence they require.

- Khor Ewe Suan & Anor v PP: Where the learned President had failed to take evidence
on oath as to the forfeiture of the bond, this occasioned a failure of jurisdiction. The
bailors were consequently deprived of the opportunity of cross-examining the witness
or witnesses on whose evidence the forfeiture was held to be established. The order
of the magistrate in forfeiting the bond was subsequently quashed where there was
a clear failure to adhere to several procedural requirements.

- Sec. 404(1): Upon sufficient cause shown, forfeiture may be waived altogether.
- The burden of satisfying the court of relief against the full penalty that the full
sum should not be imposed lies with the surety.
- Valliamai v PP: Careful consideration ought to be given by the court in
exercising its discretion in two stages:
- Has sufficient cause been shown against forfeiture
- If the bailor had put in effort to ensure the attendance of the
accused in court, such fact would constitute sufficient cause.
- Loh Kim Chiang v PP: The court has to consider to what extent
the surety was at fault. If he connived at, aided or abetted the
disappearance of the accused, the whole sum should be
forfeited.
- If not, are the circumstances such that the whole sum of the penalty
ought to be enforced
- Valliamai: The fact that the appellant “did not make any
application to discharge” herself as surety as was advised is not
sufficient reason for making an order for the whole sum of the
penalty to be enforced.

- Where the court orders forfeiture of the whole sum, it is only that sum that may be
ordered forfeited despite two or more of the bailors being ordered to make payment.
- Re Ling Yew Huat: Where two sureties stood as surety for the accused in the
sum of RM8000 in two sureties, when the accused failed to appear in court
and the sureties were ordered to pay a penalty of RM12,000, in portions of
RM8000 and RM4000, the court found that the order of payment of RM12,000
clearly exceeded the amount fixed in the bail bond of RM8000 in two sureties
and was erroneous.
Courts & Jurisdiction
Original Jurisdiction of the courts (determined by reference to the maximum term of
imprisonment of the offence):
- High Court:
- Sec. 22(1), CJA: To try all offences

- Sessions Court:
- Sec. 63, SCA: To try all offences except those punishable with death

- First Class Magistrate’s Court:

- Sec. 85, SCA: To try offences punishable with imprisonment of not more than
10 years or with fine, as well as offences under Sec. 392 (robbery) and 457
(lurking house-trespass or house-breaking)
- It is subject to the overriding jurisdiction of the Sessions Court
- Nadarajah v PP: When a case falling within the magistrate’s jurisdiction
is filed in the Sessions Court, the court cannot decline to exercise its
jurisdiction. This may occur where the prosecution seeks a sentence
that is beyond the jurisdiction of the magistrate in a particular case.

- Second Class Magistrate’s Court:

- Sec. 88, SCA: To try offences punishable with imprisonment that does not
exceed 12 months or fine.
Sentencing competence:
- High Court:
- Sec. 22(2), CJA: May pass any sentence fixed by law including the death
penalty.

- Sessions Court:
- Sec. 64, SCA: May pass any sentence allowed by law except the death penalty.

- First Class Magistrate’s Court:

- Sec. 87(1), SCA: May only pass sentences of imprisonment not exceeding 5
years or fine of RM10,000 or whipping up to 12 strokes, or a combination of
any sentence.
- Exception: A First Class Magistrate may pass sentences in excess of its
sentencing competence under two provisions:
- Proviso to Sec. 87(1): The court may award punishment in excess of its
sentencing power if any law in force gives it jurisdiction to do so.
- Cheong Ah Cheow v PP: The judge sentenced the accused to 18
months’ imprisonment and a fine of RM20000, which exceeded
his sentencing competence, but was within that prescribed in
the Betting Ordinance.
 - Sec. 87(2): The court may award punishment in excess of its sentencing
power in consideration of the accused person’s previous convictions or
antecedents.
- Abdul Wahab v PP: The court enhanced the accused’s sentence
from 2 years to 10 years’ imprisonment as the accused had a
total of 12 previous convictions. The court stated that the
legislature enacted Sec. 87(2) to meet situations where an
offence is committed by an accused with a very bad record.

- Second Class Magistrate’s Court:

- Sec. 89(1), SCA: May only pass sentences of imprisonment not exceeding six
months or fine not exceeding RM1000 or a combination of any sentence.

- A court must pass a sentence in accordance to the law and within its sentencing
jurisdiction.
- PP v Roxas Tan Haji: Where the two accused persons were charged and
punished under Section 135(1)(ii) of the Customs Act which did not provide for
the punishment of imprisonment, the trial court passed the sentence of six
months’ imprisonment and fined them with RM10000 each, in default, to
imprisonment of twelve months. On appeal, the appellate judge held that
where the provision did not provide for the punishment of imprisonment, the
trial court had clearly exceeded its jurisdiction.

- A court is also subject to constraints of sex and age when considering sentences of
death and whipping.
- The death penalty cannot be imposed on:
- A woman with a child at the time of her conviction (Sec. 275, CPC)
- A person who, at the time of the commission of the offence, was a child
(Sec. 97, Child Act)

- The punishment of whipping cannot be imposed on (Sec. 289, CPC):

- Women
- Men sentenced to death
- Men over the age of 50, except for those sentenced to whipping under
Sec. 376, 377C, 377CA, 377E of the Penal Code.

- Sec. 288(1), CPC: The punishment of whipping shall not exceed 24

strokes for an adult, or 10 strokes for a youthful offender.

- Plea of guilt:
- Raja Izzuddin Shah v PP: No plea in mitigation should be thrown aside lightly
but must be examined and considered equally with the facts presented by the
prosecution. It is generally accepted that an accused person should be given
 credit or discount for pleading guilty, and failure to do so gives rise to
interference by a superior court.
- Soosainathan v PP: The High Court stated that where the learned magistrate
made no reference whatsoever in his grounds of judgment to the guilty plea
of the accused with the result that there is no indication of the consideration
given to the plea, he had obviously not considered it in favour of the accused,
and has failed to explain his reasons for not doing so, thus resulting in a
misdirection.
Local Jurisdiction:
- Sec. 121, CPC: Every offence shall ordinarily be inquired and tried by a court within the
local limits of whose jurisdiction it was committed.

- High Court:
- The High Court of Malaya has the jurisdiction to try all cases within its local
jurisdiction that is, the territory comprised in all eleven states (Sec. 3, CJA).
- Sova Sdn Bhd v Kasih Sayang Realty: A High Court located in one state is but a
branch of the High Court in Malaya, and each branch of the High Court in
Malaya located in any state has concurrent jurisdiction.
- Lt Kdr Balakrishnan v Menteri Pertahanan Malaysia: The local jurisdiction of
the High Court in Malaya covers the whole of Peninsular Malaysia and should
not be interpreted so as to create individual local jurisdiction in respect of
each state in which the High Court sits.

- Sessions Court:
- Sec. 59(1), SCA: The local limit is assigned by the YDPA, but where none has
been assigned, the court shall have jurisdiction over matters in any part of the
local jurisdiction of the High Court.

- Magistrate’s Court:
- Sec. 76(1) & (2), SCA: The local limit is assigned by the YDPA, but where none
has been assigned, the court shall have jurisdiction over matters in any part of
the local jurisdiction of the High Court.
- Sec. 2, CPC, ‘local limits’: The limits of the ordinary administrative district in
which the Court house is situated.
- Wong Pang Fing v PP: The appellant was convicted of an offence in the
Magistrate’s Court in Kuching, but on appeal, it was submitted that the
magistrate had no jurisdiction to hear the case since the offence was
committed in the District of Bau which had its own Court house. Held: Where
the offence took place at the 17th Mile Kuching/Bau Road, and the Bau District
and Kuching are two distinct administrative areas, the 17th Mile was well
within the Bau administrative area. Thus, the magistrate clearly had no
jurisdiction to hear the case at the Magistrate’s Court in Kuching as he had no
jurisdiction over the District of Bau.