CHAPTER ONE

INTRODUCTION

GENERAL

1.1 Applicable Law

The process of criminal justice is governed by the following legislation:
(1) Criminal Procedure Code (Act 593);
(2) Subordinate Courts Act 1948 (Act 92);
(3) Courts of Judicature Act 1956 (Act 91).
The principal legislation which provides the basis of the working of the criminal justice system
is the Criminal Procedure Code (‘CPC’). This is evident from section 3 of the CPC which states:
All offences under the Penal Code shall be inquired into and tried according to the provisions hereinafter
contained, and all offences under any other law shall be inquired into and tried according to the same
provisions: subject however to any written law for the time being in force regulating the manner or place
of inquiring into or trying such offences.
However, as regard matters of criminal procedure for which no special procedure has been
made by this CPC or by any other law for the time being in force, section 5 of the CPC provides
that the law relating to criminal procedure for the time being in force in England shall be applied
so far as the same shall not conflict or be inconsistent with this Code and can be made auxiliary
thereto.
[would you like to add something to cover the new Bill along the lines of the example
paragraphs below?] ok with what you added.

1.2 The Criminal Procedure Code

As referred to above, the CPC is the principal legislation governing the criminal process. It was
first introduced in 1927 in the former Federated Malay States and from 10 January 1976 applied
through the whole of Malaysia. It was revised in 1999 as Act 593 which superseded the previous
statute FMS Cap 6. The CPC has been the subject of amendment throughout the years, including
by the following recent amendment acts:
(1) Criminal Procedure Code (Amendment) Act 2001 (Act A1132);
(2) Revision of Laws (Rectification of Criminal Procedure Code) Order 2005
(PU (A) 224/2005);
(3) Criminal Procedure Code (Amendment) Act 2006 (Act A1274);
(4) Criminal Procedure Code (Amendment) (Amendment) Act 2007 (Act 1304);
(5) Revision of Laws (Rectification of  Criminal Procedure Code) Order 2008
(PU (A) 341/2008);
 (6) Criminal Procedure Code (Amendment) Act 2009 (Act 1350).
Further proposed amendments are contained in the Criminal Procedure Code (Amendment)
Bill 2010 which has not yet been passed. The Bill contains a number of new provisions relating
to:
(a) pre-trial processes including pre-trial conferences, case management, plea bargaining and
disposal of cases;
(b) the finality of judgment after a plea of guilty has been entered;
(c) impact statements by victims or their families before sentencing;
(d) reinstatement and continuation of trial after discharge where witnesses have been called
to give evidence at a trial before an order for discharge has been given by the Court and
the accused has been recharged for the same offence;
(e) the requirement for the accused to be notified of the right to put forward a defence of
alibi at the time he is charged and the conditions as to when he can raise the defence of
alibi and when notice of alibi must be given;
(f) the tendering of evidence by written statement;
(g) proof by formal admission;
(h) disposal of seized articles or detention of property necessary to an investigation;
(i) the discretion of the court, upon conviction, to order payment by the accused of the costs
of his prosecution or for the accused (or where the accused is a minor, his parent of
guardian) to pay compensation to a person who is the victim (or his representative where
he is deceased) of the offence committed by the convicted accused in respect of the injury
to his person or character, or loss of his income or property, as a result of the offence
committed.

COMMENCEMENT OF THE CRIMINAL PROCESS

1.3 Police Report, Information and Complaint

The process of criminal justice commences when a police report is lodged by the victim of an
offence. ‘Offence’ means any act or omission made punishable by any law for the time being in
force (section 2(1) CPC). Information in the context of ‘every information relating to the
commission of an offence if given orally’ in section 107(1) of the CPC must be distinguished
from a ‘complaint’ as defined in section 2(1) of the CPC in that:
(1) there is a duty to give information on every person who is aware of the commission of or
the intention of any person to commit certain categories of offences or of any sudden,
unnatural or violent or suspicious death (section 13(1)(a), (b) CPC);
(2) ‘complaint’ means the allegation made orally or in writing to a magistrate with a view to
his taking action under the CPC that some person whether known or unknown has
committed or is guilty of an offence.

1.4 Investigation
On the lodging of an (to omit) receiving information of the commission of an offence and where
the offence is a ‘seizable offence’, the police proceed to investigate. ‘Seizable offence’ means an

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offence for which, and ‘seizable case’ means a case in which, a police officer may ordinarily
arrest without warrant according to the third column of the First Schedule of the CPC
(section 2(1) CPC). However, more than acting as a means of identifying an offence as one in
which a police officer may ordinarily arrest without warrant, the fact an offence is a ‘ seizable
offence’ has implications in terms of police investigation. Where the offence is seizable, the
police investigating officer may exercise the powers of investigation under Part V Chapter XIII of
the Code.
The conduct of an investigation will necessarily encroach on personal fundamental rights as in
the course of the investigation questions will be asked and answers will be demanded, there may
be the conduct of a search and the application for the detention of a person to complete
investigations. Such powers must be provided by law and when the offence being investigated is
designated as a ‘seizable offence, the police investigating officer may exercise these powers
without need to apply for an Order to Investigate (OTI) from the Public Prosecutor.

1.5 Charges
On the establishment of an offence from the investigations carried out, charges are then framed.
The purpose of the charge is to:
(1) inform the accused of the offence alleged against him and of which he has to defend
himself;
(2) enable the court to know what evidence is to be led.

1.6 Compelling Attendance of Accused

The next stage is the application for process to enforce the attendance at the trial of the accused
by either a summons or a warrant of arrest. Section 2(1) of the CPC defines these terms in the
following manner:
(1) ‘summons case’ means a case relating to an offence and not being a warrant case.
(2) ‘warrant case’ means a case relating to an offence punishable with death or imprisonment
for a term exceeding six months.
The approach in deciding on the type of process to compel the accused’s attendance by
reference to the definition was adopted in Karpal Singh v Public Prosecutor [1986] 2 MLJ 319 at
320 where it was said:
In order to issue the proper process to compel the attendance of an accused person, it is incumbent upon
the court first to determine whether the offence is one that falls under a summons or warrant case.
Section 2 of the Criminal Procedure Code provides for the definition of a summons or warrant case. A
‘Summons case means a case relating to an offence and not being a warrant case’ and a ‘Warrant case
means a case relating to an offence punishable with death or with imprisonment for a term exceeding six
months’.
The offence in this case being punishable by section 27(8) of the Police Act 1967 carries the penalty of a
fine not exceeding RM 500 or an imprisonment term not exceeding six months or both, it is clear that
this is a summons case and not a warrant case and therefore a summons would in the first instance issue
and not a warrant.
There may, however, be some ambiguity over what would constitute a ‘summons case’ when
the definition in section 2(1) of the CPC is compared with the fourth column of the First Schedule
of the CPC which is the Tabular Statement of Offences under the Penal Code. The fourth column
is entitled: ‘Whether a warrant or a summons shall ordinarily issue in the first instance’ and states
that for offences against laws other than the Penal Code, a summons shall ordinarily issue in the

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first instance when the term of imprisonment for the offence is less than three years. [are the
additions OK?] This would also contradict the ratio decidendi in Karpal Singh v Public
Prosecutor [1986] 2 MLJ 319 that a summons case is a case punishable with imprisonment of
less than six months.
It may, however, be possible to distinguish the fourth column of the First Schedule of the CPC
which is entitled ‘Whether a warrant or a summons shall ordinarily issue in the first instance’
from the ratio decidendi in Karpal Singh v Public Prosecutor in that the fourth column refers to
the process ordinarily issued to enforce the attendance in court of a person complained against.
By reference to the fourth column, a summons shall ordinarily in the first instance be the process
so long as the punishment is less than three years’ imprisonment even though according to the
definition in section 2 of the CPC, an offence punishable with more than six months’
imprisonment is not a summons case. Although it can be contended that the fourth column relates
to the process that shall ordinarily issue for offences for which the prescribed length of
imprisonment is more than six months but less than three years, though such offences are
categorised as ‘warrant cases’, the ambiguity awaits resolution.

1.7 Determination of Trial Court

The court before which the accused is charged and which is to try him, is determined by reference
to the maximum term of imprisonment which can be imposed, if convicted.

1.8 Bail
Pending the trial, the accused may be released on bail depending on whether the offence is
bailable or non-bailable (see the fifth column of the First Schedule of the CPC). Where the
offence is bailable, bail is of right but where the offence is non-bailable, bail is at the discretion of
the court and its grant may be on certain terms and conditions. The bail bond imposes an
obligation on the accused to attend court proceedings until its disposal.

1.9 First Schedule of Criminal Procedure Code

Lastly, the tabular statement of offences under the Penal Code annexed as the First Schedule to
the CPC is a valuable source of reference in relation to offences (1) under the Penal Code; and (2)
against laws other than the Penal Code.
The schedule is divided into seven columns. They are:
(1) Columns 1 and 2 which identify the section and offence under the Penal Code. However,
in relation to “offences against laws other than the Penal Code”, the particular offence is
not identified. Instead, these offences are categorised according to the maximum term of
imprisonment which may be awarded for that offence.
(2) Column 3, which is entitled “Whether the police may ordinarily arrest without warrant or
not”, is useful as a guide to determine whether the offence is “seizable”. Where the
offence is “seizable” then the police may arrest without a warrant as well as exercise the
powers contained in Chapter XIII of the CPC in the course of investigations into an
offence.
(3) Column 4, which is entitled “Whether a warrant or summons shall ordinarily issue in the
first instance”, will determine the form of process to compel the attendance of a person in
court on a complaint to a Magistrate under Chapter XV of the CPC for the
commencement of proceedings before the magistrate’s court (see Chapter XVI of the
CPC).

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(4) Column 5 which assists in determining whether bail may or may not be offered.
(5) Column 6 which determines whether offences may or may not be compounded and is to
be read in conjunction with section 260 of the CPC.
(6) Column 7 which details the maximum punishment prescribed for the offence. The
maximum punishment is, in turn, a guide to determine the particular court in which an
accused person is to be charged as the original jurisdiction of a court is determined by the
type and maximum punishment which it can award.