CRIMINAL COURTS

 Section 6: the courts for administration of criminal justice shall be those constituted
under Courts of Judicature Act (CJA) = FC, COA, HC / Subordinate Courts Act (SCA) =
Sessions Court, Magistrate Court / by any other law in force. (eg. Courts for Children
under Child Act).
 Section 7: all trial must take place in open court.
 Lee Boon Tuan [1960] MLJ 179
o “…The trial was not held in camera nor that the interpretation of the expression
"the place in which any criminal Court is held" is necessarily confined to the very
building that has been set up by the State for the conduct of a trial….The place
itself rather than the building is to be regarded as an open Court.

 Exception for ‘Trial in Camera’:

o Section 101 SCA & Section 15 CJA: proceeding to be heard in camera in the
interest of justice, public safety & security.
o Section 12 Child Act: Proceeding for children are closed to maintain the privacy
for children.

JURISDICTION
 A court of law is an institution empowered with the authority to determine finally any
dispute properly brought before it in a manner that will bind the parties to the dispute.
 Most generally, the term is used to describe the authority and power of the courts to
adjudicate disputes and to ward and enforce its pronouncement.
 Since jurisdiction is often used to describe the powers of the court, the two words are
often also used interchangeably.
 Thus, the phrase “inherent jurisdiction” has been used to describe the inherent powers of
the court to protect its own processes, including –
o the punishment of people for contempt of court; and
o to strike out and dismiss proceedings as an abuse of court process.
 Hap Seng Plantations (River Estates) S/B v. Excess Interpoint S/B [2016] 4 CLJ 641,
FC refer to Lee Lee Cheng v Seow Peng Kwang [1960] MLJ 1
o Thomson CJ: …in the Ordinance there is a distinction between the jurisdiction of
a Court and its powers, and this suggests that the word "jurisdiction" is used to
denote the types of subject matter which the Court may deal with and in relation
to which it may exercise its powers. It cannot exercise its powers in matters over
which, by reason of their nature or by reason of extra-territoriality, it has no
jurisdiction. On the other hand in dealing with matters over which it has
jurisdiction, it cannot exceed its powers.
 Dato' Seri Anwar bin Ibrahim [2011] 1 MLJ 158, FC
o ‘There is a difference between the words "jurisdiction" and "power" in law.
Jurisdiction denotes the scope of authority over a subject matter the court may
deal with. The court may then exercise its power in relation to and pursuant to that
jurisdiction.
Magistrates’ Court
 Section 76(1) SCA: YDPA may constitute so many Magistrate Court as he thinks fit &
shall have power to assign local limits of jurisdiction thereto.
 Section 76(2) SCA: a Magistrate Court shall have jurisdiction to hear and determine any
civil/criminal matter arising within the local limits of jurisdiction.
 Section 2(1) CPC: ‘local limits of jurisdiction’ of Magistrate Court means limits of
administrative district in which the court is situated.
 Article 145 FC: the AG has power to institute conduct or discontinue any criminal
proceedings. Confers power to AG to determine the Court to institute prosecution.

Second Class Magistrate

 Section 88 SCA: jurisdiction to try – may try all offences which are punishable with a
term of imprisonment not > 12 months / punishable with fine only.
 Section 89 SCA: jurisdiction to sentence – may punish the offender with a term of
imprisonment not > 6 months / fine not > RM1k / both.
 Section 117(2) CPC: magistrate may order detention of the accused in custody (means
can issue remand order).
 Proviso of Section 88: if the second class magistrate thinks that the power of punishment
is inadequate, he should adjourn the case for first class magistrate.

First Class Magistrate

 Section 85 SCA: jurisdiction to try – may try all offences punishable with imprisonment
not > 10 years / punishable with fine only.
 Exception:
o Section 85: a first class magistrate may try offences under Section 392 (robbery)
& Section 457 (house breaking) of Penal Code which punishable with max 14
years imprisonment.
 Section 87(1): jurisdiction to sentence – may punish the offender with:
i. Imprisonment not > 5 years
ii. Fine not > RM10k
iii. Whipping not > 12 strokes
iv. Combination of any
 Section 83 SCA: first class magistrate may issue summons, writ, warrant, make orders of
adjournment, remand & bail, execution of judgment, transfer of proceeding to Sessions
court.
 Section 9 CPC: criminal jurisdiction of Magistrate:
i. Hear criminal trials (summary trials)
ii. Inquire into complaints of offences & summon, examine witnesses, issue warrant
for apprehension of offender
iii. Issue warrant to search places of any stolen goods
iv. Hold inquiries of death
 Exceptions:
o Proviso of Section 87(1): first class magistrate may award punishment in excess
of the power prescribe where any law gives him the authority (specific provision).
 Example: Section 118 Customs Act – a first class magistrate may impose
a fine up to RM25k in any offences under this Act.
 Example: Section 41 DDA – a first class magistrate shall have jurisdiction
to try any offence under DDA except Section 39B.
 Section 12 DDA: impose a sentence up to 5 years imprisonment /
fine not > RM100k
 Example: Section 6(3) Betting Act – a first class magistrate may impose a
fine not < than RM20k & not > RM200k & imprisonment not > 5 years.
 Cheong Ah Cheow v PP – the magistrate sentenced the accused to
18 months imprisonment & fine of RM20k for an offence under
Betting Ordinance. The accused appealed but the decision was
upheld by High Court.
 PP v Yap Sin Peng – the magistrate imposed a fine of RM20k on
the accused for an offence under Betting Ordinance. High Court
held that the first class magistrate may impose a sentence in excess
of his prescribed power under proviso of Section 87(1).
o Section 87(2): a first class magistrate may increase the punishment prescribed in
Section 87(1) provided that the judge knows of the accused’s previous convictions
before sentencing & records his reasons for doing so.
 PP v Tengku Hitam – High Court observed that provision of Section
87(2) should only be invoked when the case takes an unexpected turn &
that the maximum punishment under Section 87(1) is inadequate.
 Abdul Wahab v PP
 Fact: the appellant had been convicted under Section 457 Penal
Code for house breaking. He had 12 previous convictions. The
learned magistrate sentenced him to 2 years imprisonment & 6
strokes of whipping.
 Held: the learned magistrate should have acted under Section 87(2)
which gives the power to first class magistrate to award full
punishment against habitual offender. The term of imprisonment
should be increased to 10 years.
 PP v Govindan
 Fact: although the accused had 11 previous convictions, the
magistrate only sentenced him to 3 years imprisonment for theft.
 Held: on appeal, the judge invoked Section 87(2) as the accused
deserved a heavier punishment. The punishment is increased to 7
years imprisonment.
Sessions Court
 Section 63 SCA: jurisdiction to try – all offences except those punishable with death.
 Section 64 SCA: jurisdiction to sentence – any sentence allowed by law except sentence
to death.

 Section 288(5) CPC: Sessions Court may impose sentence of whipping but it shall not
exceed the statutory maximum of 24 strokes.
 Tuan Mat bin Tuan Lonik v PP
o Fact: Sessions Court passed a sentence of 50 strokes on the accused for 5 offences
of rape.
o Held (COA): it is contravene to Section 288(5) CPC & reduced it to 24 strokes
 Nadarajah v PP
o Fact: the accused was charged under Section 506 Penal Code (criminal
intimidation). The case was tried in Sessions Court. The defence counsel objected
as the case should be tried in Magistrate Court in pursuant to Section 85 since the
charge carries a maximum 7 years imprisonment.
o Held: Section 63 allows the Sessions court to try all offences except those
punishable with death. Section 85 do not oust the trial jurisdiction of Sessions
Court for offences falling within MC’s jurisdiction.
 Territorial Jurisdiction: Taman Rimba (Mentakab) Sdn Bhd
o Sessions Court in the country do not enjoy concurrent territorial jurisdiction of
each other.
o Under Section 59(1) SCA, territorial jurisdiction boundaries are allocated to them.
o Under Section 59(2) SCA, Sessions Court shall hear & determine any
civil/criminal matter arising within the local limits of jurisdiction assigned to it.

High Court
 Article 121 FC: there are 2 High Courts namely High Court of Malaya & High Court of
Sabah & Sarawak.
 Section 3 CJA: ‘local jurisdiction means (a) in the case of the High Court in Malaya, the
territory comprised in the States of Malaya, namely the states in Peninsular Malaysia. (b)
in the case of the High Court in Sabah and Sarawak, the territory comprised in the States
of Sabah, Sarawak and the Federal Territory of Labuan including, in either case, the
territorial waters and the air space above those States and the territorial waters
 Section 3 CJA: judge – judge of FC, COA & HC
 Section 22(1): jurisdiction to try (original jurisdiction) – all offences committed within
local jurisdiction, offences under Chapter VI of Penal Code & under any written law…
 Section 22(2): jurisdiction to sentence – any sentence allowed by law (include death
penalty)
 Section 26: appellate jurisdiction – may hear all criminal appeals from subordinate
courts.
 Section 31: revisionary jurisdiction – High Court has the power of revision for criminal
proceedings in subordinate courts.
 Inherent power: Datuk Haji Wasli v PP
o Held: Inherent power is in fact a judicial power. Striking out a case/staying its
proceedings is an exercise of judicial power.
 Concurrent Jurisdiction literally means having the same authority. Concurrent jurisdiction
means jurisdiction of several courts each authorised to deal with the same subject matter
at the choice of litigant, or jurisdiction exercised by different courts at the same time over
the same subject matter.
 Sova Sdn Bhd v. Kasih Sayang Realty Sdn Bhd
o Held: High Court located at Penang or at Alor Setar 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 to entertain any civil proceedings regardless of whether
the cause of action arose in another state.’

Local Jurisdiction of High Court:

 There are two conflicting views as to the meaning of ‘local jurisdiction’ of High Court:

 Restricted View
o Tengku Abdul Muiz Shah v PP
 Fact: an application was made in High Court of KL to transfer the case
from Magistrate Court of JB to Magistrate Court of KL.
 Held: the application was dismissed as High Court in KL had no
jurisdiction.
 Wilder View
o Lt Kdr Balakrishnan v Menteri Pertahanan Malaysia
 Fact: an application for habeas corpus of a naval officer detained in Lumut
was made in High Court of KL.
 Held: High Court of Malaya consists of the territories in whole Malaysia.
Hence, the application was allowed.
o Sova Sdn Bhd v. Kasih Sayang Realty Sdn Bhd
 Held: the 2 High Courts have many branches. Thus, a judge sitting in high
Court of Malaya at KL has the same power to try a matter arising in
another part of West Malaysia.

Court of Appeal
 Section 50 CJA: hear any criminal appeal frim decisions of the High Court
 It is the second highest court in Malaysia & vested with only 1 jurisdiction i.e. Appellate
Jurisdiction.
 If the case start at Subordinate court, COA is the final Court for Appeal
Federal Court
 Section 87: hear any criminal appeal from decisions of the COA
 Section 87(3): An appeal may lie on a question of fact or a question of law or on a
question of mixed fact and law.
 Article 121(2) & Article 128(3) FC: Federal Court may determine appeals from
decisions of COA and HC and may confirm, reverse or vary any decision or order a
retrial.
 The Federal Court is only reposed with the jurisdiction to hear an appeal from the
decision 'in respect of any criminal matter decided by the High Court in its original
jurisdiction'.
 Sia Cheng Soon & Anor. v. Tengku Ismail Tengku Ibrahim
o Section 87 relates to the Federal Court's jurisdiction to hear and determine
criminal appeals. This section allows appeals of any criminal matter decided by
the High Court in its original jurisdiction only. It does not provide for appeals in
criminal appeals originating in the subordinate courts.… According to section
50(1), criminal cases decided by the Sessions Court may be appealed up to the
Court of Appeal... Section 50 read with section 87 means that, criminal matters
originating in the Sessions Court... must end at the Court of Appeal.
 Ahmad Zubair Hj Murshid
o Section 87 of the CJA clearly provides that in criminal cases the Federal Court
will only have jurisdiction to hear and determine any appeal from the decision of
the Court of Appeal in its appellate jurisdiction in respect of matter decided in the
High Court in its original jurisdiction. Thus, when a criminal matter originated
from the Sessions Court, the Court of Appeal stands as the final court or the apex
court. No further appeal shall lie to the Federal Court. The appeal should stop at
the Court of Appeal.

Special Court
 Established in 1993 under Part XV of the Federal Constitution.
 Jurisdiction:
o Article 182 (3): exclusive jurisdiction to try all offences committed in the
Federation by the Yang di-Pertuan Agong or any of the Rulers of the States and
all civil cases by or against the Yang di-Pertuan Agong or any of the Rulers of the
States in his personal capacity. (if official capacity cannot)
o Artticle 183: one must first obtain consent from the Attorney General prior to
institution of any action.
 Faridah Begum bt Abdullah v Sultan Hj Ahmad Shah
Courts For Children (CFC)
 CFC is established under Child Act 2001. (Note: it belongs to subordinate court)
 Section 2(1): ‘child’ means (a) a person under the age of 18 years; and (b) in relation to
criminal proceedings, means a person who has attained the age of criminal responsibility
as prescribed in Section 82 of Penal Code (under 10 years old).

 Section 11(1): the purpose of CFC – hearing, determining or disposing of any charge
against a child
 Section 11(2): a CFC shall consist of a Magistrate, as the case may require, be assisted by
2 advisers.
 Section 11(3): one of the two advisers shall be a woman.
 Section 11(4): the functions of the advisers are:
a) To inform and advise the CFC any consideration affecting the order made or other
treatment of any child brought before it; and
b) To advise the parent or guardian of the child.
 Section 11(5): A CFC shall have jurisdiction to try all offences except offences
punishable with death.
 Section 11(6): the CPC shall apply to CFC as if CFC were Magistrate’s Courts.

Jurisdiction:
 Section 83(1): a child who is alleged to have committed an offence shall not be arrested,
detained or tried except in accordance with this Act.
 Section 83(2): when a child is charged with an offence before CFC and pending the case,
he attains the age of 18 years, the CFC shall continue to hear the charge and may:
a) Exercise the power under Section 76 (to order the detention, in a Henry Gurney
School, up to the age of 21 years).
b) Exercise the power under Section 91(1)(a), (b), (c), (d) or (g); or
a) Admonish or discharge the child
b) Discharge the child upon his executing a bond of good behaviour
c) Order the child to be placed in the care of relative or other fit and proper
person
d) Order the child to pay a fine, compensation or costs
g) Order the child, if a male, to be whipped with not more than 10 strokes of
a light cane
c) If the offence is punishable with imprisonment, impose any term of imprisonment
which could be awarded by a Sessions Court.

 Section 83(3): when an offence is committed by a child but a charge of that offence is
made against after he has attained the age of 18 years, the charge shall be heard by a
Court other than CFC.
 Section 83(4): a charge made jointly against a child and a person who has attained the age
of 18 years shall be heard by a Court other than CFC.
 Section 96: a child under the age of 14 years shall not be ordered to be imprisoned.
 Section 97: YDPA has the power to decide in offences punishable with death (to detain,
further detain/release).
 PP v Kok Wah Kuan
o Fact: PP argues that Section 97 is unconstitutional as the sentencing power is a
judicial power which belongs to the court but not YDPA.
o Held (FC): Section 97 is the power of judge and decision of judge to surrender to
YDPA to decide in offences punishable with death

INQUIRIES OF DEATH
 The criminal jurisdiction of a magistrate includes the holding of inquiries of death. The
Magistrate's Court thus assumes the powers and duties of a coroner's court. It is a court of
law set up to investigate and ascertain the cause of death.
 A death inquiry or inquest is therefore a proceeding by a magistrate with a view to record
a finding as to the cause of death and to any of the circumstances connected therewith in
regard to which the public prosecutor may also have directed a magistrate to make
inquiry.
 Section 337 CPC: death inquiry is to be made by magistrate.
 Section 328 CPC: 'Cause of death' include not only the apparent cause of death as
ascertainable by inspection or post-mortem examination of the body of the deceased, but
also all matters necessary to enable an opinion to be formed as to the manner in which the
deceased came by his death and whether his death was a result in any way from, or was
accelerated by any unlawful act or omission on the part of any other person.

 Circumstances when inquiry is held:

o Section 329 CPC: duty of PO to investigate the death when
 committed suicide,
 been killed by another person, an animal, a machinery or by an accident,
 or that he came by death under circumstances that there is a reasonable
suspicion that some other person has committed an offence,
 or that the apparent cause of death is not known or sudden
o Section 324 CPC: further inquiry by magistrate when a complaint is dismissed
under Section 135 or when the accused has been discharged or when death occurs
while the person is in police’s custody.

 When inquiry is not necessary:

o Section 333(3) CPC: if criminal proceeding have been instituted.
 Procedure of inquiry:
1) In an inquest, there are no parties, indictment, prosecution or defence, and no trial
because the function of an inquest is to establish the facts.
2) Since an inquiry is to determine the cause of death, all matters necessary to enable
an opinion to be formed as to the manner in which the deceased came by his death
are relevant. Thus any person who has a real, substantive and reasonable interest
in the inquest may at the discretion of the magistrate be allowed to examine (not
cross-examine) witnesses at the inquest.
 Sara Lily & satu lagi lwn Public Prosecutor - Such interest must be
'real, substantial and reasonable'.
3) Section 267 CPC: The magistrate holding an inquiry shall record the evidence in
legible handwriting and may include in the footnote of the evidence his remarks as
to the demeanour of the witnesses.
4) Section 268 CPC: record to be in narrative form, not in the form of Q&A.
5) Section 269 CPC: the evidence given by witnesses shall be read over to him to
ensure correctness.
6) Section 271 CPC: the magistrate recording the evidence of the witness may record
any remark in the footnote as to the demeanour of the witnesses.
7) Section 338 CPC: the magistrate shall immediately transmit to the public
prosecutor his original evidence and findings duly authenticated by his signature
or a copy of such evidence and findings duly certified under his hand as correct.
8) Section 7 CPC: Inquiry should be held in open court.

o (Note: but may be held in camera, if the court is satisfied that it is expedient in the
interest of justice, public safety, public security/proprietary or for other sufficient
reasons to do so.

 Finding of Magistrate: at the conclusion of the inquiry, the magistrate is expected to make
the finding of –
a) death by misadventure (caused by eg accident, struck by lightning, drowning,
suicide)or
b) death caused by a person or persons unknown as a result of lawful or unlawful
intentional and or unintentional act culminating in unforeseeable death, or
c) death caused by an act of God, or
d) death caused by natural causes, or
e) open verdicts (where there is insufficient evidence to bring in any of the other
verdicts)
 A magistrate who conducted the inquiry must, however, confine himself to the evidence
made available to him, and decide on that evidence alone.
 If any verdict was based on probability and not on the established facts, that verdict must
be quashed, and an open verdict returned.

 Standard of Proof:
o Teoh Meng Kee v Public Prosecutor
 Fact: the trial court held that the standard of proof of inquest is higher than
BOP, below than BRD. Held: the standard of proof for inquest = BOP.