Aug 2017

1
(a) Our courts have recognized that an order for detention pursuant to s117 CPC curtails the
liberty of a citizen, and as such, all procedural requirements relating to this provision must
be strictly complied.
Discuss. (15 marks)

 An accused is innocent unless proven guilty: Woolmington – Art 5 FC provides that a

person should not be deprived of his personal liberty
 Since a remand order under s117 CPC would curtail the personal liberty of Accused,
Us, the requirements under s117CPC are strictly complied with
 S117 CPC (read with s119) provides –
(1) – (7)
 s119 (read with s117) provides –
(1)
(2)
 It is mandatory for investigation diary to be produced as held in Audrey Keong; Re
Sivarasa & Ors; Ayar & Ors
 Further remand after expiry of remand order:
Duis Askim – s117A allowed Accused who charged for murder to be remanded for 8
days under s259 till the chemist report came out.
 Remand order under s117 prevails over bail for bailable offence under s387: Maja
Anak Kus
 Detention under SOSMA 2012:
S4 – A person arrested may be detained for 24 hours for purpose of investigation: He
may be detained up to 28 days by a police officer not be low the rank of
Superintendent of Police. If further detention is not necessary he may be released
but he may be attached with an electronic monitoring device.

(b) Discuss all relevant laws relating to the arrest and search of John Rambo (10 marks)

 S116ACPC – provides that Inspector Stallone may enter, search or seize any
documents without a warrant for evidence of an alleged terrorism offence
 S116BCPC – provides that Inspector Stallone has access to computerized data and
can demand JR to furnish his password to the computer
 Whether Inspector Stallone arrest JR without arrest warrant
- S23(1)(a)CPC – Inspector Stallone may, without a warrant, arrest JR where
any seizable offence has been committed & credible information has been
received
- In this case, since a terrorism offence is a seizable offence, Inspector Stallone
can arrest without a warrant
 Whether Inspector Stallone may break open the door to enter and search
- S16(1)CPC – Inspector Stallone with authority to arrest may enter and search
for JR to be arrested and s16(2) police may use reasonable force to break in
when entry is denied.
 - S116(4)CPC – Inspector Stallone, without a warrant, may enter and use
reasonable force to break in to search the premises
- S116(4) and s16(2) are the same.

2
(a)(i)
 S121 CPC – general rule: every offence shall be tried within its local limit of
jurisdiciton
 S122 CPC – states that the court has jurisdiction to try where act is done or
consequence ensues. (A escaped or was arrested)
 Thus. Since A was arrested in Kota Bharu, he can be tried at Kota Bharu HC pursuant
to s122CPC.

(a)(ii)
 B was arrested in Nilai, he can be tried in HC at Seremban, Negeri Sembilan by virtue
of s122CPC.

(a)(iii)
 Whether B and C can be jointly tried
- S163 CPC 2nd limb CPC – Every charge shall be tried separately unless the
exceptions under s170 (2 or more A) apply
- S170(1) CPC – provides that B and C can be tried together where they jointly
committed the offence of murder on Man Kaya
- Illustration (a) to s170 – A & B are accused of the same murder. A & B be
charged & tried together for murder procedure to transfer
- S417 CPC – provides that HC may transfer on the report of a lower court; or
on application by the prosecution or the accused; or the HC’s own initiative
for
i. Fair & impartial
ii. Difficult questions of law
iii. View of place
iv. General convenience of parties or witnesses; or
v. Justice
- S418CPC – application to transfer by DPP is by motion
- Based on the facts, it is submitted that the transfer will be approved as it is
alleged that both have jointly murdered Man Kaya

(b) Issue – To discuss the discretionary power of the court to extend the timr period to file
the petition of appeal under s310 CPC
 S310 CPC – The Judge may extend the time in order that substantial justice may be
done.
- Thus, The Judge has discretion to allow the extension of time and will
consider whether there are compelling reasons so that substantial justice
may be done
 The Appellant may apply to HC giving reasons:
 Extension of time was allowed in –
 - Sundarevek – DPP posted the petition of appeal but it arrived after 4 days
and was 2 days after the expiry date
- Innocent – The grounds of decision was sent to the wife instead of to the
appellant who was in prison
- Ishak b Hj Shaari – There was a change of solicitors
- Azman Abdul Ghani (CA) – Application to extend the time under s56 CJA was
allowed in the interest of justice
 Extension of time was not allowed in
- Jumari bin Mohamed – The inadvertence of the advocate to file the petition
within time was inexcusable

3
(a)
 For a guilty plea to be valid certain procedures must be followed as discussed below.
 S173(b) CPC – If A pleads guilty to a charge as originally framed or as amended, the
plea shall be recorded and he may be convicted and the court shall pass sentence
according to law
Provided before the guilty plea is recorded, A understands the nature and
consequence of his guilty plea and admits without qualifications the offence alleged
against him.
 “understands the nature and consequence of his guilty plea” –
 It means that:
i. A must know there is no trial and the max sentence may be passed:
Lee Weng Tuck (SC); and
ii. A cannot appeal against conviction: Gabriel; Huang Chin Shin
 Hajar bt Ishak – HC said that there was a miscarriage of justice as the trial
judge did not comply strictly with s173(b).
 Sukma Darmawan – In a sodomy case, the CA (Gopal Sri Ram JCA) stated
that since the prosecution suppressed material evidence favorable to the
defence (medical evidence that there was no penetration), the conviction of
A based on his guilty plea might be quashed.
 Trans Huu Tho & Ors (David Wong Dak Wah J) – On revision, HC held it was
unsafe to accept the guilty pleas from unrepresented foreigners who might
not understand the nature and consequence of their pleas.
 “without qualifications” – means without conditions. The following cases illustrate
that the guilty pleas were made with qualification and hence they were rejected:
 Cheah Chooi Chuan (Chang Min Tat J) – A pleaded guilty when the person
cut the cockerel at the temple
 Munandu (Gunn Chit Tuan J) – A pleaded guilty for theft and said he took the
bicycle when drunk
 Yusoff – A pleaded guilty for possession of his own kris which he lent for the
wedding of a friend
 Magarita B Cruz – A said kept she kept her friends’ passports at their
request
  Seah Ah Chiew – A pleaded guilty to s15(1)(a) DDA 1952 and said she only
consumed beer and was on medication for diabetes. On revision, HC held
that the trial judge should have rejected her guilty plea
 Fitness to plead –
Misbah b Saat – Since the medical report showed that A was fit to plead, hence he
could plead guilty

 Whether A can plead through counsel:

 A himself must plead: Lee Weng Tuck (SC)
 Cf. s137(2)CPC – If an offence is punishable with fine only or imprisonment
up to 3 months, A may plead by his advocate or by letter.
 If the facts and law are complicated – the Magistrate should not accept the guilty
plea unless A is represented by Counsel: Low Hiong Boon
 Brief facts must be given after guilty plea:
 Palan – Brief facts must be given after the guilty plea and the accused must
be asked whether he admits to the brief facts. If he admits the conviction
must be recorded.
 Thus, if the above procedures are followed the guilty plea is good law.

(b)
Issue – to discuss the circumstances in which the Court will amend the charge when the case
for prosecution is concluded

 S173(h)(ii) CPC – provides that if a prima facie case is made out on another offence,
the Court shall amend the charge
 Circumstances where the Court amends the charge:
 Dato’ Seri Anwar Ibrahim (FC) – there was duplicity of charges for corruption
and sodomy.
 Msinanga Lesaly (FC) – At the close of the prosecution’s case the charge for
drug trafficking was amended to state that A was the sole trafficker. The FC
held that amended charge did not occasion a miscarriage of justice.
 Whether the Court is duty bound to amend the charge:
 Under s158CPC, the Court is not duty bound to amend the charge
 Under s173(h)(ii)CPC, the Court is duty bound to amend the charge under as
held in –
i. James Tan – The magistrate should amend the charge as the facts
showed that the accused committed another offence.
 It is preferable to amend the charge at the end of the prosecution’s case:
Salamah
 The prosecution requires leave of the court to amend the charge: Francis
Dang anak Nuya.
 Whether the amended charge is to be read and explained:
 S173(i) CPC – The amended charge must be read to A who must be asked to
plead
 Whether it is mandatory for the amended charge to be read and for A to
plead:
 i. Lim Thuan Hong v Jebsen – Held, it was mandatory for the amended
charge to be read and explained
ii. Cf. Hee Nyuk Fook (SC) – Held, it was not mandatory for the amended
charge to be read and explained depending on the circumstance of
the case

4
(a)
(i) Discuss the power and procedure to require lawyer Mat Best to give a statement
under s112 CPC

 S111(1)CPC – Provides that Inspector Cekap the IO may by order in writing require
the attendance of lawyer Mat Best who appears to be acquainted with the
circumstances of the case and he shall attend as required
 Proviso to s126(1) EA 1950 – lawyer Mat Best cannot claim privilege of
communication between him and his client Jack Tipu because it was alleged that Mat
Best prepared the false document
 Illustration (b) to s 126 – A, a client to B, an advocate: “I wish to obtain possession of
property by the use of a forged deed on which I request you to sue”
The communication being made in furtherance of a criminal purpose is not
protected from disclosure

(ii) Discuss the right of Jack Tipu pertaining to the above facts

 Jack Tipu has the following rights:

 To be informed of the ground of his arrest: s28A(1) CPC
 To legal representation: s28A(2) CPC
 To remain silent: s112(2) CPC
 To correct the s112 statement: s112(5) CPC
 To make his s112 statement voluntarily: s114CPC; Norliana Sulaiman
 However, his right to legal representation may be refused by Inspector Cekap who
has to give reason: s28A(8) CPC

(iii) Discuss the effect if lawyer Mat Best refuses to attend Balai Polis Hang Tuah for the
purpose of giving his statement

 S111(2) CPC – If lawyer Mat Best refuses to attend Balai Polis Hang Tuah for the
purpose of giving his statement, Inspector Cekap may report such refusal to
Magistrate who may issue a warrant to secure his attendance.
 Since, the Magistrate has discretionary power, he will consider the circumstances of
the case before issuing the warrant.

(b)
Issue – To advice Janggut on the law of arrest
 The law of arrest is on arrest by a private person and is governed under s27CPC.
 S27CPC – provides that...
 (1)...
(2)...
(3)...
 “In his view” means –
a. “in his sight”: Durga Singh; Kartar Singh; Metro(Golden Mile) Pte Ltd v Paul
Chua(unreported)
b. “in his opinion” (in addition to “in his sight”) Sam Hong Choy – there must be
proximity of time, proximity of place, continuity of action and design
 “Without unnecessary delay” – John Lewis & Co Ltd v Tims – the suspected
shoplifters (mother and daughter) were detained until the managing director and
chief store detective arrived. It was held there was no unnecessary delay
 Since the offence is a non-seizable one, the arrest of Janggut by Misai is illegal.
 Remedies for unlawful arrest:
a. Self-defence when police arrested A for a non-seizable offence:
i. Ong Kee Seong – A assaulted the PO for unlawfully arresting him for a
betting offence which is a non-seizable offence which requires a
warrant of arrest
ii. Kok Khee – A assaulted the officer for taking his “dacing”;
iii. Khor Ah Kah – A assaulted the officer who confiscated his goods.
b. Civil suit may be taken if the arrest or detention is unlawful:
i. Tan Kay Teck – The complaint of wrongful confinement was not
reasonable as the complainant and the defendant were negotiating
payment. Hence the arrest was unlawful
ii. The Plaintiff may claim up to Rm5K for wrongful arrest.
iii. Hassan bin Marsom & Ors v Mohd Hady bin Yaakop – Damages
including exemplary damages were awarded to the person who was
wrongfully arrested and detained and for the injuries suffered during
detention.
c. Writ of habeas corpus may be applied: s365-374 CPC

5
(a)
 S261CPC - ...
 Proviso to s261 – provides:
(a)...
(b)...
 Pathmanathan Kumarasamy v PP (HC) – the appellant was charged under s409 and
s471 of the Penal Code. After three prosecution witnesses had been called the
Session Court Judge was replaced by a new Sessions Court Judge. When the
appellant requested for the previous judge to continue there was no explanation
why the previous judge did not continue. At the end of trial the appellant was
convicted on the former charge but acquitted on the latter charge. The appellant
appealed on the ground that the provisions of s261 CPC were not complied with and
had prejudiced the appellant.
The High Court allowed the appeal and held inter alia –
 [1] s261 CPC only applies of the previous judge ceases to have jurisdiction. In this
case, there was no record whether the appellant had made the application for the
previous judge to continue and no explanation as to the outcome of the application.
[2] A succeeding judge would not be able to see the demeanor of the witnesses
[3] Since the procedure under s261 was not complied with his conviction was not
safe as it prejudiced his rights to have a fair trial.
 Exceptions where the court may not allow such an application by an accused for trial
de novo.
Lai Weng Keat v PP (FC) – In a murder trial the first 2 judges had heard the
testimonies of 17 out of the 18 prosecution witnesses. The 3rd judge dismissed the
application of the appellant for the case to be heard de novo as it was after 7 years
but allowed the appellant to recall any witnesses for the prosecution but the
appellant declined to recall any of them. The High Court convicted him and his
appeal was dismissed by CA.
FC dismissed his appeal and held, inter alia, that –

[1] In exercising its discretion under s261 of the CPC and s18(2) of CJA, the court had
taken into consideration other factors, namely:
(a) whether it was more appropriate for the relevant witnesses to be re-
heard rather than the whole case to be heard de novo;
(b) the large number of witnesses already called and given and the large
number of exhibits already tendered;
(c) whether the facts of the case were straight forward;
(d) the ability of the witnesses to recall event may have diminished with a
lapse of time;
(e) it would unnecessarily prolong the trial and increase the expense;
(f) unnecessary hardship to the prosecution and the witnesses

[2] The application for the case to be heard de novo was only made about seven
years after the commission of the offences. The ability of the witnesses might have
diminished and it would be difficult to relocate those witnesses as well as it would
be unfair to those witnesses. It would also unnecessarily prolong the trial and
increase the expense.

[3] Since the credibility of the prosecution witnesses was not an issue, the judge
could rely on the evidence of the material witness recorded by his predecessors to
decide the case and there was no necessity for the case to be heard de novo by
him. Hence, the appellant had not been materially prejudiced by the failure of the
judge to hear the case de novo.

(b)
Issue – How a Sessions Court Judge would rule on the application made by the defence
counsel for an order for Mok to be sent for a potency test.
 Rape is defined as having sexual intercourse without consent. There must be
penetration to amount to sexual intercourse. If Mok is impotent, there cannot be
penetration and he cannot be guilty of rape.
  Mok claims that he is impotent and hence he could not be charged for rape as there
can be no penetration.
 As the Sessions Court Judge, I would make an order for Mok to undergo a potency
test under the inherent jurisdiction of the court (Karpal Singh) to prevent injustice to
Mok.
 If the medical report shows that he is not impotent then the charge stays and he will
be tried for rape.
 If the medical report shows that Mok is impotent – then Mok’s counsel may by a
letter of representation make a plea bargain with the prosecution to amend the
charge.
 If the prosecution amends the rape charge to indecent assault and Mok pleads
guilty to the amended charge then the Sessions Court Judge will sentence him under
s172(j)CPC.
 The issue is “who pays for the cost of the potency test?”. The Sessions Court Judge
may make any of the following orders:
a. Mok need not pay for the cost as he is making a bare denial and the
prosecution has to prove that Mok is not impotent; or
b. Mok has to pay for the cost as he is raising his defence of impotency
pursuant to s105 EA 1950

(c)
 The Court appealed from shall make a signed copy of the judgement and serve it by
leaving it at the address mentioned in the notice of appeal or by registered post:
s307(3) CPC
 The statutory provision does not explain what the judgement should contain. Thus,
reference has to be made to case law.
 In Balasingham, the court held that the grounds of decision must convey a reasoned
judgement of the facts and law and not merely a conclusion.
 In Augustine, it was held that the Magistrate has a duty to state in his grounds of
judgement the findings of all facts which establish the ingredients of the offence.
 The appellate court will interfere in the following situations:
a. The finding of fact is not supported by evidence: Dato’ Yap Peng
b. The material facts were not considered: Vijaya Raj
c. The finding of fact is based on defective inferences: Abang Abd Rahman
d. The statement was not voluntary: Hasibullah bin Mohd Gahzali
e. There was no specific finding of fact and the finding of fact was only an
inference drawn from facts: Ma’arif

6
(a)(i) Advise the Court on the procedure governing the taking of ‘plea’ from the accused
person. (5 marks)
 S173(a) CPC - ...
 “read and explain” – means in the language he understands:
Fong Hung Sium – A was a Hainanese and the interpreter was a Hokkien – the
accused could not understand and it contravened s173(a);
  In this case, the charge was read but the question does not state whether it was
explained to Nakal.
 At this stage, the court may allow amendment of the charge, transfer the case, grant
bail, grant an adjournment or discharge the accused.

(a) (ii) Advise the Court on the trial procedure to be followed, if Nakal refuses to plead the
charge. (5 marks)
 Pre-trial processes – consist of:
a. Pre-trial Conference – s172A CPC
b. Case Management – s172B CPC
 Trial starts – Court proceeds to take all evidence if Nakal refuses to plead: s173(c)
 Prosecution case:
a. Opening address – not mandatory for Summary trial: s174(1)CPC
b. Prosecution witnesses are called – EIC, CE, Re-E
c. End of prosecution’s case
d. Court determines whether prima facie case is made out under s173(f)
 Defence case:
a. Nakal is given 3 options – give sworn evidence, unsworn statement, or
remain silent: s173(ha)
b. Defence witnesses are called – EIC, CE, RE
c. Closing speech by defence
 Reply by prosecution
 Court decides – whether Nakal is guilty or not guilty: s173(m)

(b)
Issue – To discuss whether ASP Andy’ application for a joint trial will be granted by the court
 S163 2nd limb CPC – Every charge shall be tried separately unless the exceptions
s164, 165, 166 and 170 apply
 Exceptions – where there is only one Accused:
a. Whether s164 CPC applies –
i. S164 CPC provides:
(1)...
(2)...
ii. Based on the facts – Joe Curi was charged for theft of a motorcycle
under s379A PC and for dishonestly retaining a different stolen
motorcycle under s411PC which are not offences of the same kind.
iii. Thus, s164 does not apply
b. Whether s165 CPC applies – Trial for more than one offence – there are 3
situations:
i. S165(1)CPC - ...
Based on the facts, s165(1) does not apply as the two offences were
not committed in one transaction.
ii. S165(2)CPC - ...
Based on the facts, s165(2) does not apply.
iii. S165(3)CPC - ...
Based on the facts, s165(3) also does not apply.
c. S166 CPC – Doubtful which offence is committed.
 Based on the facts, s166 applies as it is doubtful which offence is committed.
 Conclusion – It is submitted that ASP Andy’s application for a joint trial will be
granted by the court.

(c)
Issue – Advise Tegas on the governing law to rely to establish his authority to prosecute.
 S377CPC – PP, SDPP, DPP, APP can conduct the prosecution of the accused. The
others – police inspector, customs officer, etch – need the written authority of the
PP to conduct the prosecution
 Repco Holdings Bhd (Gopal Sri Ram JCA) – The prosecution by the officers of the
Securities Commission without the written authority of PP was ultra vires the
Constitution.
 After Repco Holding Bhd – s380CPC was legislated which provides that s377 and s380
CPC shall prevail over any written law.
 This means that Tegas must obtain the written authority of the PP even though the
Securities Industry Act 1983 (Act280) allows Tegas to prosecute.

7
(a)
 If the Accused claims trial the Hight Court shall proceed to try the case – s178(3)CPC
 There will be pre-trial processes before the High Court commences the trial as
discussed below.
 The objects of the pre-trial processes are –
a. To discuss all matter before the trial so as to dispose the cases quickly;
b. To reduce costs
c. To weight the strengths and weaknesses of the prosecution and defence
d. To secure a just, expeditious and economical disposal of cases
 Pre-trial Conference:
a. S172A CPC – provides that
i. A pre-trial conference shall commence between the accused and the
prosecution within 30 days from the date the accused was charged
but before the commencement of case management to discuss all
matters which may lead to the expeditious disposal of the case
ii. During the pre-trial conference, the matters discussed are given in
s172A(4)(a) – (g) including plea-bargaining and defence of alibi and all
matters agreed upon must be in writing and signed by the accused,
his advocate, and the prosecution.
b. Thus, each party will know the strengths and weakness of his case. It also
saves the court’s time. This is beneficial as it will lead to a just, expeditious
and economical disposal of the case.
 Case management:
S172B CPC – provides that:
a. A case management process shall commence between a Magistrate/ Sessions
Court Judge/ High Court Judge, the Prosecution, the Accused and his
advocate within 60 days from the date the Accused was charged to discuss all
matters that have been agreed by the Prosecution and the Accused.
 b. At the case management, a Magistrate/ Sessions Court Judge, or High Court
Judge shall consider the matters given in s172B(2)(i)-(vii) including plea-
bargaining and defence of alibi. All matters that have been reduced into
writing and duly signed by the accused, his advocate and the prosecution
shall be admissible in evidence
c. A subsequent case management, if necessary, may be held not less than 2
weeks before the commencement of the trial which shall commence not later
than 90 days from the date accused was charged.
 When the pre-trial processes have been completed, then only the HC will commence
the trial of the accused.

(b)
 S179(1)CPC – It is mandatory for the prosecution to open its case.( Discretionary in
sub court – s174CPC)
 Contents of the opening statement can be seen in the following cases:
- Sha’ari Jusoh (FC) – The prosecution can only state what it intends to prove
- Timhar Jimdani Ong – (s39B case) One of the purposes of the opening
address is to show the charge is not frivolous. The opening statement is not
evidence and there is no need to state the outburst by A and the offer to
bribe.
- Thien Teck Soon (CA) – The opening statement need not give evidence of the
agent provocateur
- Pathmanabhan Nalliannen & Ors (Akhtar Tahir J)(Sosilawati’s case) – The HC
held that the prosecution’s departure from its opening statement did not in
any way affect the case adversely.
- Chieng Chung Ting v PP – In a drug trafficking case, the appellant was
convicted by the HC. The CA held that although the prosecution in the
opening statement mention the presumption of possession under s37(d)
DDA, it did not prevent the presenting of evidence of actual possession.

(c)
 The contents of the record of proceedings consist of the following:
a. Prosecution’s case – notes of:
i. EIC including any exhibits
ii. CE by the defence and
iii. RE by the prosecution
 The notes may be in the narrative form.
 Presently, the notes of the proceedings may be obtained via electronic recording in
diskette form from the court on payment of a fee: s272A-K CPC