UMAR IZAT BIN NUBLI

IZAT & ASSOCIATES

LWH08F
SUMMARY TRIALS BY MAGISTRATES

1. INTRODUCTION
- a summary trial deals with the whole procedure of a trial in a subordinate courts.

Case 1 = Tengku Abdul Aziz v Public Prosecutor

- the procedure laid down in section 173 for summary trials by magistrate applicable to summary
trials in the sessions court too.

Case 2 = Sia Yik Hung v Public Prosecutor

- this section, however, has no application in proceedings in the juvenile court.

- it is a ‘speedy trial’ dispensing with unnecessary formalities or delay. The proceedings are
however to be conducted with the same case as in ‘regular trials’ or perhaps with more care so
that the accused might not see any apprehension of failure of justice on the procedure in a
summary trial.

Case 3 = Muthusamy v Public Prosecutor

- in a summary trial, a Magistrate should remember

a) That the trial is summary;

b) That the evidence must be confined to what is legally relevant;
c) That where the rule of evidence is explicit it must be enforced strictly on both sides; and
d) That where the rule is discretionary, for example, as to points which are remote or only
affect credit, the discretion must be exercised with regard to the real gravamen of a
particular charge.

2. PRODUCTION AND RECORDING OF PLEA

- process:

a) Charge;
- section 173(a), the charge, on the appearance or production of the accused, is read and
explained to the accused.
- an accused is said to 'appear' when he comes to court on his own without being escorted by the
police. Thus an accused may 'appear' in court where he has been released on bail or where he is
summoned to appear under s 136 ante.
- an accused is 'brought before the court' when he has not been released on bail or when he is in
the custody of the police. In such a case an accused will be escorted into court by the police.

Case 4 = Rogayah bte Che Mat v Public Prosecutor

- it is essential to the validity of the plea that the accused must understand the form and nature of
the charge framed against him. Without an explanation, the accused might not comprehend the
charge.
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IZAT & ASSOCIATES
LWH08F
Case 5 = Huang Chin Shiu v R
- the purpose of the reading and explaining of the charge is to enable the accused person to know
the essence of the allegations against him and consequently, must be in a language in which the
accused person is conversant.

Case 6 = Fong Hong Sium v Public Prosecutor

- this does not necessarily mean that it must be his mother tongue.

Case 7 = Nalliah v R
- the accused is entitled to have the proceedings interpreted to him.

Case 8 = Re Mohamed Miskon son of Kadar Bacha

- failure to read and explain a charge can be fatal to a conviction as the accused may not have
understood what he pleaded to.

Case 9 = Mahmood Ali v Public Prosecutor

- where the accused is charged with more than one charge, each charge should be put to him
separately and the accused should be asked to plead to each charge as it is read to him and a
record of this should be made.

- in a joint trial where more than one person is charged, the charge should be read and explained
to each accused and the plea of each accused taken and recorded separately after the
consequences of the plea have been explained and acknowledged by each of the accused person.

Case 10 = Maung Min Aung v Public Prosecutor

- any failure to comply with this procedure will result in the conviction being bad and not curable
under section 422 of the CPC.

Case 11 = Public Prosecutor v Margarita B Cruz

- if a charge is defective, it may be amended at any time before the trial commences. A court
should point out the defects and request the prosecution to amend the charge as an accused must
truly understand the nature of the charge he is asked to plead to.

b) Plea of guilt;
- after the charge is read and explained, the accuse may elect to:

i. Plead guilty; or
ii. Claim trial.

- section 173(b) states that where the accused elects to plead guilty, the court shall ascertain that
he understands the nature and consequence of the plea and intends to admit, without qualification,
the offence alleged against him.
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- the court must satisfy itself that:

i. It is the accused himself who wishes to plead guilty;

ii. He understands the nature and consequences of his plea; and
iii. He intends to admit without qualification the alleged offence.

I. It is the accused himself who wishes to plead guilty

Case 12 = R v Tan Thian Chai & Anor

- the court must ensure that it is the accused himself who wishes to plead guilty or claim trial
through his own mouth.

Case 13 = Chin Ban Keat v R

- the counsel of the accused may legally make a plea for the accused and the court may assume
that he is acting in accordance with instructions. Nevertheless the best practice is to make the
accused plead personally and record his words.

II. Understands nature and consequence of plea

- the accused understands the nature and consequence of his plea.

- the phrase ‘understand the nature and consequence of his plea’ includes the following:

A. The accused will have no opportunity to put forward his case;

B. The accused knowing the nature of his plea and the nature of the offence he is pleading
(Low Hiong Boon v Public Prosecutor)
C. The accused will not be allowed to appeal against his conviction (Gabriel v Public
Prosecutor)
D. It will not preclude the maximum sentence from being imposed (Lee Weng Tuck &
Anor v Public Prosecutor)

III. Intends to admit without qualification the alleged offence

- in other words, unequivocal plea.

Case 14 = Chen Chong & Ors v Public Prosecutor

- the plea of guilty must be unequivocal. It is important that there is no ambiguity in the plea. If
there are elements in the case to which the accused is really trying to plead not guilty then the
court has no discretion but to record a plea of not guilty.

- it is a cardinal principle that a plea of guilty should be completely unreserved, unqualified and
unequivocal. It should be free of any ambiguity, condition or qualification.
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- the following pleas were held to be qualified and should not have been accepted:

A. On a charge of possession of a keris, the accused explained that he was returning it after
a wedding ceremony (Public Prosecutor v Yusoff)
B. The accused had pleaded guilty after the complaint had accepted his challenge to
slaughter a cockerel (Public Prosecutor v Cheah Chooi Chuan)
C. On a charge of administering to herself an alleged dangerous drug, the accused stated
that she had consumed only beer and that she was a diabetic and receiving medical
treatment (Seah Ah Chiew v Public Prosecutor)
D. On a magistrate comprising with the accused that if they pleaded guilty, he would only
impose a small fine (Public Prosecutor v Wong Sik Chun & Ors)

c) Facts of the case;

- the established practice is, on a plea of guilty, the prosecution is required to tender a statement
of facts which outlines the nature of the offence allegedly committed by the accused,
notwithstanding the plea of guilty, and even though the CPC do not specifically require an outline
or statement of the facts of the case to be given.

Case 15 = Mohd Fazil bin Zainul Abidin v Pendakwa Raya

- the magistrate was held to have erred in finding the appellant guilty and convicting him of an
offence under section 411 PC merely based on the facts of the case as stated in the charge sheet
without waiting for or directing the facts of the case to be produced by the prosecution. The
charge sheet was held stated only the minimal facts of the case and was not a statement if facts
and it was insufficient to inform the appellant as to how he was dragged into the case. The court,
on being satisfied that the accused understands the nature and consequences of his plea, then
records the facts as presented by the prosecuting officer to ascertain whether admission of facts
amounts to a plea of guilty in law.

I. The facts must establish the offence charged; and

II. The accused must admit such facts.

Case 16 = Abdul Kadir bin Abdul Rahman v Public Prosecutor

- the statement of facts is designed not only to ascertain whether admission of the facts amounts
to a plea of guilty in law but also to enable the court to form an opinion as to the circumstances of
the crime and the conduct of the accused in assessing sentence.

Case 17 = Public Prosecutor v Soon Tiew Choon

- the facts must reflect the true and essential elements on the charge.

Case 18 = Lo Kim Peng & Ors v Public Prosecutor

- the facts must constitute an offence. Where the facts tendered do not constitute the offence
charged or amount to an offence not known to the law or where on or more of the essential
ingredients in the charge are not set out in the facts, the general practice is that the plea of guilty
ought not to be accepted by the court.
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d) Conviction on plea;
- the plea of guilty does not of its own force constitute a conviction. It is a further act of the court
that will result in one.
- the acceptance of the plea by the court amounts to a determination of guilt because it means that
the court is satisfied that the accused has pleaded guilty to an offence known to law with full
appreciation of the nature and consequences of the plea.

e) Disposal of guilty plea;

- section 172G, where an accused person pleads guilty at any time before the commencement of
his trial, the court shall sentence him in accordance with section 172D(1)(c)(ii) that reads:
- sentence of the accused to not more than half of the maximum punishment of
imprisonment provided by law for the offence for which the accused has been convicted.

f) Withdrawal of guilty plea;

Case 19 = Abdul Mormin v Public Prosecutor

- there is a discretion vested in a trial court to allow an accused person to withdraw a plea of
guilty before the court is functus officio.

Case 20 = Public Prosecutor v Jamalul Khair

- that a court is not functus oficio until it has passed a sentence or has otherwise finally
adjudicated the matter.
- the discretion to permit an accused person to withdraw a plea of guilty is to be exercised
judicially and for valid reasons.

Case 21 = Abdul Kadir bin Abdul Rahman v Public Prosecutor

- an accused person cannot be permitted merely at his whim to change his plea except on valid
and sufficient grounds which satisfy the court that it is proper in the interest of justice that he be
allowed to do so.

Case 22 = Lee Weng Tuck v Public Prosecutor

- reasons to allow an accused to retract a plea of guilty would be when there is reasonable doubt
as to the validity or unequivocally of the plea due to failure to take proper safeguards.

Case 23 = Goh Beow Yam v R

- the absence of valid and sufficient reasons will preclude the court from the exercise of its
discretion.

Case 24 = Wong Kok Bin v Public Prosecutor

- the normal practice, however, is to allow an application to retract a plea of guilty before the
facts of the case are given.
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Case 25 = Yeoh Eng Hock v Public Prosecutor
- this was stated to be an elementary rule in that all the accused need to do then was to refuse to
admit the facts or enter a qualified plea by pleading other facts which would be treated as
claiming trial.

g) Plea bargaining;
- plea bargaining was introduced into the trial process under the provisions of section 172C CPC.
- plea bargaining is a negotiated agreement between a prosecutor and a criminal defendant
whereby the defendant pleads guilty in exchange for some concession by the prosecutor which
may be to a lesser charge or to one of multiple charges and dismissal of the other charges (charge
bargaining) or in the case of sentence, a more lenient sentence recommended by the prosecutor of
an agreed sentence.
- section 172C CPC reads as follows:

I. An accused may make an application for plea bargaining in the court in which offence is to
be tried.
II. The application under subsection (1) shall be in the Form 28A of the 2nd Schedule and shall
contain:
A. A brief description of the offence that the accused is charged with;
B. A declaration by the accused stating that the application is voluntarily made by him after
understanding the nature and extent of the punishment provided under the law for the offence
that the accused is charged with; and
C. Information as to whether the plea bargaining applied for is in respect of the
sentence or the charge for the offence that the accused is charged with.

Case 26 = Public Prosecutor v Manimaran Manickam

- has proposed the following guidelines:

I. The request for plea bargain must come from the accused person;
- the application must be made by the accused person to the PP and if the application is made
to the court, the court must forward the same to the PP.
II. If the application is made by the counsel representing the accused person, he must get a
written authority signed by his client affirming that the client wishes to plea bargain on the
sentence.
III. The PP must react quickly to the request, and both parties must reach an agreement,
preferably in writing on the sentence ( the minimum and maximum acceptable to them).
IV. The agreement should be placed before the court who, if it so agrees, would impose a
sentence that comes within the range as agreed to by the parties.
V. If the court disagrees with the sentence proposed (the judge must retain the unfettered
discretion whether to agree with the sentence or not) it must so inform the parties, and it is
up to the parties to decide on the next move.
VI. The process of plea bargaining must be done transparently (it must be recorded and the notes
will form as part of the notes of proceedings).
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- the court has a duty to ensure that the accused has made the application voluntarily.
- where the court is of the opinion that the application is made involuntarily [section 172C(6)
CPC] or when the accused and the PP cannot come to a satisfactory disposition of the case, the
case shall proceed to trial before another court so as not to prejudice the accused.

h) Exhibits;
i) Record of previous conviction
j) Victim’s impact statement [section 176(2)(r) - lower court, section 183A - High Court)