Powers of Public Prosecutor (PP)

 s.376(1) : AG is the PP, only 1 PP in the country, he has control and discretion of all
criminal proceeding in the country which takes place in civil court.

Read together with Art 145(3) : The AG shall have power exercisable at his discretion, to
institute, conduct / discontinue any criminal proceedings for an offence other than
proceedings before a Syariah Court, a native court / a court martial.

Eg : Rape
Police investigate and outcome = IP  forwarded to the PP’s office for a decision.
Decision whether to institute prosecution against the offender (charge / not to charge).

 s.376(2) :
Public Prosecutor (PP) --- (AG) 1 person

Solicitor General (DPP) 1 person
s.376(3) : 
DPPs – under control and discretion of PP many persons

APPs (now no more in Malaysia)

 All the DPP & PP will peruse & study the IP and look out for the elements of the
offence (criminal law) and evidence for purposes of charge / prosecution in court.

 What CPC is applicable ?

- Jurisdiction of court, search, arrest, 112 statement etc

 After that DPP makes decision to charge – institution

 Once brought to court, then become initiation
 DPP goes to court to prosecute, call witnesses, tender documents, cross-examine, re-
examination
 If accused dies, PP will discontinue prosecution against accused
 withdrawal of charge – discontinuance
PP v Datuk Haji Harun bin Hj Idris
Institution (act of making decision whether to prosecute or not prosecute)

Initiation (bringing the criminal matter to court)

Conduct (discontinuance)

Eg : Joe in prosecution of firearm and ammunition, forget to renew license to carry and
use firearms – offence under Arms Act 1960. At the same time he committed robbery
using the firearm. So the DPP will charge him under Firearms (increased penalty) Act
1971 (FIPA)
 whether to charge under which Act is under prosecutorial discretion
PP will look at : - background of the accused
- public interest

Johnson Tan Han Seng v PP [1977] 2 MLJ 66

 The accused was charged under S.57 ISA 1960 where the punishment was death.
 He appealed, arguing for equality before the law under Art 8 FC and that he should have
been charged under s.57 ISA 1960.
 Suffian LP, delivering judgement in the Federal Court, said that Art 145(3) FC prevails over
Art 8 FC in that the pp has the discretion to prefer the charge under S.57 ISA 1960.
 It was held that the DPP could give consent under S.80 ISA 1960 as he was the alter ego of
the PP.

Long bin Samat v PP [1974] 1 MLJ 152

 The accused was convicted by the Magistrate Court for voluntarily causing hurt by the
dangerous weapons / means under S.324 PC where punishment of 3 years imprisonment.
 The accused appealed on the grounds that he should have been charged under S.326 PC
( voluntarily causing grievous hurt by dangerous weapons / means ) with imprisonment for 20
years or fine or whipping and tried in Sessions Court and hence the trial in the Magistrate
Court was a nullity.
 Suffian LP in the Federal Court held that the trial in the Magistrate Court was not a nullity
as the PP has very wide discretionary powers to institute, conduct / discontinue any proceeding
for an offence under Art 145(3).
 The learned LP opined that the PP had the discretion to prefer whatever charge to deemed fit
and the court could not interfere with the exercise of his discretion.
MACC – investigate corruption officer
Customs – investigate customs etc
SC ( securities commission ) – investigate offences under CMSA

There are provisions in those law, before institution of prosecution, the PP’s consent must
be obtained. DPPs are always the alter ego of the PP.

s.129 CPC - requires prior sanction in writing by the PP

(consent in writing by the PP – other law)
(a) Offences under s.127-188 PC relates to disobedience to lawful authority at
public servant
(b) Those offences are perjury offences
(c) Forgery

 sanction / consent – relates to institution of prosecution

 if the law requires sanction / consent, it is mandatory requirement and no exception
otherwise the whole prosecution become illegal.

Illegal Irregular

 s.422 CPC
 the whole process is illegal  proceedings are only irregular

 if above is a conviction, it can be set  it is curable

aside.

 Court will apply s.422 to decide whether the institution of prosecution without consent
/ sanction as required by the law is illegal / irregular.
 In order to decide that the court will see if the accused is prejudiced by the non-
compliance of the law.
 no prejudiced – irregular – curable under s.422
 there is prejudice – illegal – not curable under s.422

Prejudice is did the prosecution study the matter seriously before instituting
prosecution.
Joginden Singh
 nullity only if there is a failure of justice
 No criminal can escape the arms of the law on ground of technicalities.
 Refused to follow Hassan bin Ishak v PP and opines that if the lack of sanction is only an
irregularity, it may be cured under s.422 of the CPC provided there is no miscarriage of
justice.
 It is the correct approach now as this is expressly provided under s.422(b) CPC.

Conduct ( Menjalankan)
 DPP / PO stands up in the court to prosecute
 locus standi
 DPP / PO shall have the locus (legal standing) to conduct prosecution in court.
 DPP --- s.376(3)

 If prosecuting officer (PO) of SC appear to conduct prosecution, the locus standi is

under s.377 CPC. There must be an authorization in writing (pemberian kuasa secara
bertulis) for to PO to conduct prosecution.

Appeal : locus standi – s.378 “permission in writing”

Powers of Public Prosecutor (Recap)

 Art 145(3) + S.376(1) = AG is the PP
 Art 145(3) : institute, conduct, discontinue
 exercisable for a discretion = prosecutorial discretion
 outcome of investigation by law enforcement officer
 application of Penal Law (element of crimes)
 application of Law of Evidence
 criminal procedure applicable
 to institute or not,  if is not : close, no further action
Institution of prosecution ( to charge or not to charge )
 Upon exercise of prosecutorial discretion, PP will decide to charge the accused person
for a criminal offence
 This is decision to institute

 once decide to charge, amounts to institution

 PP must be mindful of the requirement as to sanction / consent to prosecute an

offence 

 Right to prefer a charge Prerequisite of institution

Johnson Tan Han Seng v PP [1977] 2 MLJ 66 (For PC : S.129 of CPC)
 The accused was charged under S.57 ISA 1960 where the punishment was death.
 He appealed, arguing for equality before the law under Art 8 FC and that he should have
been charged under s.57 ISA 1960.
 Suffian LP, delivering judgement in the Federal Court, said that Art 145(3) FC prevails over
Art 8 FC in that the pp has the discretion to prefer the charge under S.57 ISA 1960.
 It was held that the DPP could give consent under S.80 ISA 1960 as he was the alter ego of
the PP.

Long bin Samat v PP [1974] 1 MLJ 152

 The accused was convicted by the Magistrate Court for voluntarily causing hurt by the
dangerous weapons / means under S.324 PC where punishment of 3 years imprisonment.
 The accused appealed on the grounds that he should have been charged under S.326 PC
( voluntarily causing grievous hurt by dangerous weapons / means ) with imprisonment for 20
years or fine or whipping and tried in Sessions Court and hence the trial in the Magistrate
Court was a nullity.
 Suffian LP in the Federal Court held that the trial in the Magistrate Court was not a nullity
as the PP has very wide discretionary powers to institute, conduct / discontinue any proceeding
for an offence under Art 145(3).
 The learned LP opined that the PP had the discretion to prefer whatever charge to deemed fit
and the court could not interfere with the exercise of his discretion.

 not question in court

Karpal Singh
Anwar Ibrahim  offences against authority of public servant
  perjury
 forgery
 S.129(5) once sanction is given, within 1 month must act
S.130 & 131 : complaint as prerequisite
Eg : if bigamy, complaint lodged by wife
( non- penal code ? = respective written law )

Effect of non-compliance of sanction / consent to institute prosecution

Illegality
 prejudices accused person
 failure of justice
 conviction will be set aside
 accused will be acquited
Irregularity
 no prejudice on the accused
 no failure of justice
 conviction on accused stays

Sanction
Abdul Hamid v PP : Differences between sanction and consent
 The offence the accused was charged with required the consent to be tendered to the court
by the prosecution from the PP.
 However, the DPP had only issued a sanction to prosecute.
 Smith J held that this sanction cannot be the evidence of consent because a consent is
different from a sanction.
 Moreover, Smith J’s judgment had the effect that “consent” is more serious than “sanction”
as the former requires deeper consideration.
 Smith J opined that :
There is an essential difference to my mind between a sanction and a consent. A prosecution
can be sanctioned without any deep consideration of the particular case : full consideration is
required for consent since “consent” is an act or reason accompanied with deliberation the
mind weighing, as in a balance, the good and evil on each side.

Hassan bin Ishak v PP : Effect of non-production of sanction : nullity

 The court held that the lack of sanction under S.171, 181 of PC rendered the trial a nullity.

Pitchay Kutty v PP : Trials become nullity without sanction

Re Abdul Kassim : Trial is nullity

Datuk Mahindar Singh v PP : Trial is a nullity
 The accused was charged with the abetment of giving false evidence under s.109 read
together with s.193 PC.
 There was no written sanction of the PP.
 The DPP was present to conduct the prosecution.
 The defence objected saying that written sanction was required under s.129 of the CPC.
 The DPP argued, relying on PP v Mohamed Halipah that the presence of the DPP was
implied sanction. KC Vohrah J said that the sanction must be in writing before the trial, as
required under s.129 CPC.

Salleh & Anor v R : not a nullity

Joginder Singh v PP :  nullity only if there is a failure of justice

 No criminal can escape the arms of the law on ground of technicalities.
 Refused to follow Hassan bin Ishak v PP and opines that if the lack of sanction is only an
irregularity, it may be cured under s.422 of the CPC provided there is no miscarriage of
justice.
 It is the correct approach now as this is expressly provided under s.422(b) CPC.

Consent
Lim Hong Yap : nullity

Lee Chwee Kiok : nullity

PP v Oei Hee Koi (PC) : absence of consent does not render the trial a nullity if DPP appears
to conduct the trial this is because DPP is the alter ego of the PP.
 The DPP himself was the prosecutor where the accused was charged for an offence under
S.57 ISA 1952 without the consent of the PP counsel objected.

PP only issue sanction / consent when he prepared to chage

Jaginder Singh : no produce sanction
Oei Hee Koi : no produce consent

How the court determine whether there is a failure of justice?

When DPP prosecute, cannot use S.422 as basic.
Conduct of Prosecution
S.376(1) : PP
S.376(2) : SG – Solicitor General
S.376(3) : DPP / Senior DPP
S.376(3A) : APP ( Assistant PP ) – by operation of law
S.377(b) : PP / DPP gives authorization + in writing to the prosecutor to conduct
prosecution -- ( not by operation of law but pursuant to authority in writing )

What amounts to conduct of Prosecutor ?

Repco v PP
Issue : whether any other authority apart from the PP may be lawfully empowered to conduct a
prosecution?
 Applicant (Repco) was charged by the Securities Commission for an offence under
Securities Industries Act 1983 (SIA).
 At the hearing, counsel for Repco objected to the locus standi of the 2 officers of the
Securities Commission who appeared to prosecute the case.
 Held : all legislation that give powers under Art 145(3) FC to the persons other than the AG
as unconstitutional, null and void provisions.
 This case interpreted Art 145(3) as conferring the AG the sole and exclusive authority to
institute, conduct, and discontinue any criminal proceeding.

 stand up in court to prosecute

 to tender charge against the accused person
 to tender consent / sanction to institute prosecution
 to call witness
 to produce real evidence and documentary evidence
 to make submission

Discontinue
 whatever PP institute, he may discontinue
A to withdraw charges  S.254 :  before delivery of judgement ( acquit / convict )
 before court becomes functus officio
 not necessary to give reason for discontinuance
  S.254A
 once discontinued, what happen?
Court discharged accused person

2 types of discharge :
 Discharge not to amounting to acquittal (DNAA)
 Discharge amounting to acquittal (DAA)

Once discontinued / discharge, can reinstitute?
YES !! if the court had made an order of DNA because criminal matter has not rested
judicially (RES JUDICATA)

If DAA can recharge?
NO !! because acquittal means court has fully heard – RES JUDICATE
Can be YES !! when? If the DAA means court has not fully heard the case

PP v Lee Chan Sang

 The PP withdrew the charges for drug trafficking against the 4 accused persons and
amended the charge against the 5th accused.
 The Magistrate Court granted a discharged amounting to an acquittal to all the 5 accused
persons.
 The respondent (5th accused) was rearrested and charged at the HC.
 The HC upheld the accused’s plea of autrefois acquit.
 The PP appealed to the Supreme Court.
 Hashim Yeop Sani, acting CJ held that s.245 of the CPC did not apply as no trial had
commenced at the Magistrate Court.
 Thus, the 5th accused could be charged again.

PP v HLS Perara
 The accused was charged for reckless driving.
 The magistrate court granted discharge not amounting to an acquittal and then a discharge
amounting to an acquittal after several postponements by the PP.
 Harun J called the case for revision and said that the Magistrate Court had to wait.
 It means that the magistrate should postpone the case.
 ask for postponement too many times
 but court cannot acquit
 must wait
 S.254A
Prosecution case on

DPP withdraws charge

Case not completed

Court allows withdrawal / discontinuance

Court should order DNAA (S.254(3))

However court choose to order DAA

Can the PP recharge?

CAN !! Because the matter is not RES JUDICATA ( Lee Chan Sang )

Pursuant to S.254A, the PP can reinstate the charge & prosecution & can continue from
where it stopped.

Stage of Criminal Proceedings

Early stage of criminal trial (prosecution stage)

DPP applies to withdraw charge

Court allows

S.254(3) : Accused must be discharged (DNAA)
(DAA- acquit)

Can the PP later recharge?

CAN !! because the criminal matter not RES JUDICATA

Once recharge, PP will restart the case
Waste of the resources

Enforce S.254 : reinstate the process
Initiation of Criminal Proceedings in Court
PP decides to charge Accused ( on paper, to institute prosecution )

Bring the matter to court – Initiation / Commencement
Plaintiff cause of action
Defendant
S.128 CPC – process involved when PP commences criminal proceedings.

Cognisance of criminal offence : court takes judicial cognisance of an offence + court

takes notice that an offence has been committed and the court is ready to issue the
necessary process to complete the attendance of the accused -  summon
 warrant

Complaint : S.2(1) CPC  allegation, not facts ( PP v Leonard )

Held : “information” is a statement relating to the commission of an offence made to a police
officer under s.107 of the CPC and a “complaint” is an allegation made to a magistrate with a
view to his taking action under the CPC.
 made orally / in writing
 by a person
 that some person has committed a criminal offence
Eg : Husband hurts wife
 Offence : S.323PC : non-seizable
 wife  lodge report to the police
 lodge a complaint to the magistrate
 whole process : private summons / private prosecution / proceedings

S.128(1)(b) : chapter 34 CPC “contempt of court”

S.128(1)(c) : Eg : rape offence – alleged to have been committed

 victim / complainant lodges police report
  police will investigate (arrest, search + seizure, statement taking)
 PP will exercise “prosecutorial discretion” (to charge / not to charge)
 PP will decide the charge (instituting prosecution S.145(3) )
 PP will direct police to arrest accused
 apply for warrant to arrest ( 1st schedule )
 magistrate issue warrant
 when magistrate issue warrant - may be taken “cognisance” of the offence of rape
- without issue against accused to allow the police
to arrest the accused & bring him to court for
purpose of prosecution.

S.128 (1) :
(a) : non-seizable offence
(b) : offence committed before magistrate Eg : contempt of court (Chap 34 CPC)
(c) : seizable offence : when PP applies for warrant
to compel the attendance of accused.
(d) :  before 24 hours expired (accused ready to be charged – eg : caught red-
handed)
 before remand period is over
 PP decides to charge
 brought to court : accused already under arrest

Fully heard : whole case completed

Witnesses called and submissions made
DPP usually granted when defence raise reasonable doubt.

Institution of Prosecution under Art 145(3) + Penal Code

+ Evidence Act
+ CPC

Court takes cognisance – S.128 CPC ( Issuance of warrant + summon )

Criminal Proceedings commenced

Accused produced in court take charge
Perumal v PP
Held : Proceedings are instituted when the accused persons plead to the charges.