FCriminal Procedure II – Summary Trial

Reading of Charge
- S. 173(a) CPC provides that when an accused appears or having brought before the
Court, a charge containing the particulars of the offence which he is accused of shall be
framed and read and explained to him. Upon such, he shall be asked whether he pleads
guilty to the offence charged or pleads not guilty and claims to be tried.
- The word ‘appears’ means the accused come on his own will when a summons is issued
against him under s. 136 CPC providing that if a Magistrate has taken cognizance of a
case where he deems it to be necessary to commence a proceeding he shall issue a
summon for the attendance of the accused.
- The phrase ‘brough before court’ would mean the accused is arrested (in custody) and is
brought before court by the authorities.
- In Ramanathan Chelliah v PP [1995] 2 CLJ 140, it was held that in the course of
accused being brought before court for proceeding, he may be handcuffed if there is
necessary to do so.
- The phrase ‘read and explained to him’ would mean that the charge is to be read in
language that is understandable by the accused and it is the duty of the court to find a
competent interpreter.
- In Fong Hung Sium v PP [1950] MLJ 293, in this case, the interpreter was of Hokkien
descendant whereas the accused was Hainanese. As such the provision in s. 173(a) was
not followed where the charge was not read and explained to accused in a language
understood by him.
- In Ah Poon & Ors v PP [2005] MLJU 56, it was held that whenever a charge is framed
in the language not understood by the accused and that even though he is present, it shall
be interpreted and explained to him in the language which he understands.
- The duties and roles of respective parties:-
1. Defence Counsel
- Object on various grounds such as a) court lacks jurisdiction; or b) Magistrate should be
disqualified from hearing under s.439 CPC; or c) charge is defective (eg. no prior
sanction of PP
- He may even apply to postpone trial under s. 259 CPC providing for power of court to
postpone or adjourn a proceeding on the absence of witness or other reasonable cause.
 2. Prosecution
- DPP may amend charge under s.158 CPC (usually to a more server charge)
- DPP is to transfer case to higher court under ss. 418A, 418B, 177, .417 CPC (eg. S. 302
PC case that is only triable in High Court)
- DPP may also apply for adjournment under s.259 CPC
3. Court
- Amend charge under s.158
- Adjourn case under s.259
- Discharge accused under s.173(g)
- Transfer or transmit case by virtue of ss.177,177A
- Ask accused whether he pleads guilty or claim trial as per s.173(a)

Plea of Guilt (Plead Guilty)

- S. 173(b) CPC provides that when the accused pleads guilty to the charge (originally
framed or as amended), such plea shall be recorded and he may be convicted on it where
the Court shall pass sentence in accordance to law. This is save in accordance that before
a plea of guilty is recorded, the Court shall ascertain that the accused understands the
nature and consequences of his plea (UNCP) and intends to admit without qualification
on the offence made against him.
(1. Make sure he understand the charge; 2. He admit must be yes or no, no yes but this
and that grandmother story all)
- S. 158(2) CPC provides that any alteration or addition of the original charge shall be
read and explained to the accused.
1. Before a plea of guilt is recorded , the accused is to “understands the nature and
consequences of his plea” (UNCP), where he must be aware that he:-
o Cannot appeal against conviction under s. 305 but may appeal against sentence;
(Gabriel)
o Cannot claim trial; (Lee Weng Tuck)
o Must know maximum sentence that may be passed. (Lee Weng Tuck)
- In Huang Chin Shiu v PP [1952] MLJ 7, court explained that for a plea of guilty to be
valid, the accused must understand on what he is pleading, where the charge made against
him must be read and explained to him in a language which he understands.
- In Sukma Darmawan Sasmitat v PP [2007] 5 MLJ, court of appeal held that as there
was found to be a suppression of material evidence in favour to the defence (could cast a
 doubt on the guilt) by the prosecution, this renders the conviction of the accused based on
his guilty plea to be quashed.
- In Suhaili bin Mohd Yusuf v PP [2019] MLJU 1608 *, it was explained that court has a
duty to ascertain that the accused understood the nature and consequence of his plea of
guilty to the charge, known as the UNCP process. In this sense, the court is required to
explain to the accused in no uncertain terms that once the plea of guilty is accepted, he
would be convicted and sentenced upon it. If he is to face incarceration (imprisonment) it
will be with immediate effect.
- The court has an overriding duty to determine whether accused is fit to plead and also to
accept the plea (whether he UNCP) and by looking at phrase used “shall ascertain”, it
shows that it is mandatory for the court to do so.
- In PP v Ismail bin Ibrahim [1998] 3 MLJ 243, it was held that the court is duty bound to
make sure that the accused is fit to plead. Upon satisfaction of such fitness, the trial can
be proceeded even if the accused was of unsound mind at the time of the commission of
the offence.
- In Lee Weng Tuck & Anor v PP [1989] 2 MLJ 143, Supreme Court held that when an
accused pleads guilty, the court must ensure that he knew not only the nature of his plea
of guilty but also the consequences of his plea, such as he can no longer claim trial and
what are the maximum sentence that will be passed against him.
- In Gabriel v PP [1992] 1 MLJ 593, court explained that upon an accused’s plea of guilty,
he must be made known that he cannot appeal against such conviction but only as to the
sentence passed against him.
- In Trans Huu Tho & Ors v PP [2009] 3 CLJ 102 , here the accused was a Vietnamese
origin and unrepresented. Court explained that most likely the accused may not UNCP if
he is unrepresented, but however this also depends on the case if it resulted in
miscarriages of justice. In this case, the judge set aside the entire proceeding on ground
that the plea is unsafe.
2. Accused’s plea of guilt must be unreserved, unqualified and unequivocal
- In PP v Cheah Chooi Chuan [1972] 1 MLJ 215, the accused contended that he will
plead guilty if the complainant slaughtered a cockerel at the temple and the complainant
later did so. Court rejected the accused’s plea of guilty as it was deemed to be not
unreserved, unqualified and unequivocal.
- In Munandu v PP [1984] 2 MLJ 82, here it was founded at the time accused pleaded
guilty he was actually drunken. Court rejected his plea on the ground that it was not
unequivocal.
- In Gunasegaran a/l Nadarajan v PP [2019] MLJU 397*, here it was found that the
accused was not made know as to the severity of punishment that comes with the charge
made against him under s. 39 DDA 1952. Hence court held that he cannot be said to have
understood the consequences of his plea. His plea therefore cannot be taken as being
unreserved, unqualified, unequivocal and unconditional. (s. 39 lol, he dk he gonna die)
3. Accused’s plea of guilt must not be through counsel
- In R v Tan Thian Chai & Gnoh Chee Bah [1932] 1 MLJ 74, court explained that for a
valid claim for trial or plea of guilty by the accused, it has to be from his own mouth and
not through his counsel or advocate.
- In Lee Weng Tuck & Anor v PP [1989] 2 MLJ 143, court referred to PP v Tan Thian
Chai and held that the accused in pleading guilty must be done by himself and not though
his counsel, save that he has UNCP.
4. When facts and laws are complicated
- In Low Hiong Boon v PP [1949] MLJ Supp 135, court was of the view that if the facts
of the case and the laws involved are of complicated ones, it is rather impossible for the
accused who is unrepresented by a counsel to plead guilty or claim trial.
- See also Trans Huu Tho & Ors v PP [2009] 3 CLJ 102 above
5. Brief facts
- Here the judge will ask order for the facts to be read to accused again and then he is to
reconfirm it.
- If accused does not admit or disagree, the court is to reject guilty plea and set hearing date
- If accused admits, then the court shall record finding of guilt.
- This a mere rules of practice in today’s context and is not provides in CPC.
- In Palan v PP [1932] MLJ 124 *, court explained that after a plea of guilty, the court will
not immediately record the finding of guilty but will order the prosecution to read the
facts again for the accused to reaffirm. Court also added that before passing a sentence,
the court has a duty to take evidence on the nature of the charge.
- In PP v Soon Tiew Choon [1976] 1 MLJ 189, it was held that when the accused pleads
guilty to a charge, brief facts shall be read to him where it must reflect the true and
essential elements of the charge made against him.
- In Abdul Kadir bin Abd Rahman v PP [1984] 1 MLJ 80, court explained that the
narrative of the facts of the case is to be reduce into a short and simple summary of it and
that the length of it will depend on the nature and the seriousness of the offence itself.
- In Mohd Fazil Zainul Abidin v PP [2010] 3 CLJ 212, it was held that it is of necessary
to provide brief facts of case made against the accused for his benefit in order that he can
understand his case better. Nonetheless, it will be difficult for the trial judge to infer the
important ingredients of the offence.
- In Helerry ak Bungkok v PP [2019] 10 MLJ 308, it was found on the notes of
proceedings during trial that both the original and amended charges were read to the
accused in Iban language, where on both occasions he said “I understand” and admitted
the brief facts to be correct. Court herein dismiss his application against his conviction as
he was found to have understood the charge made against him properly.
6. Withdrawal of plea of guilty
- The accused may withdraw his guilty plea before court is functus officio.
- Oxford Dictionary of Law: Functus officio is used to describe a person who has
discharged his duty and that his authority is at an end. For instance, once judgment is
give, a judge is functus officio where he can no longer make any changes to his decision
- In PP v Jamalul Khair [1985] 1 MLJ 27 *, court explained that functus officio means
that when the trial judge has passed the sentence. As such the accused is also allowed to
withdraw his plea even during the stage of mitigation.
- In Lee Weng Tuck & Anor v PP [1989] 2 MLJ 143 **, it was held that the discretion lies
on the court as to whether to allow a plea of guilty to be withdrawn. Such discretion must
be exercised judicially on the basis of proper grounds.
- In PP v Saw Kim Hai [1960] MLJ 256, it was held that an accused who had pleaded
guilty is not allowed to withdraw his plea as he wishes as he must have valid reasons in
doing so.
- In New Tuck Shen v PP [1982] 1 MLJ 27*, it was held that guilty plea may only be
withdrawn on reasons such as accused has mistakenly believe as to the facts and laws and
not due to his failure of plea bargaining with the prosecution.
7. Joint plea
- In Fong Siew Poh & 3 Ors v PP (1933) 1 MC 155, court explained that a conviction
upon a joint plea of guilty is deemed to be a bad one. The charge herein should be
explained to the accused and the plea of each accused person .taken and recorded
 separately after the consequences of the plea has been explained and acknowledged by
each accused.
- In Subramaniam & Anor v PP [1976] 1 MLJ 76, court explained that when an accused
is being slapped with several charged, each and every charges must be read and explained
to him separately and when the pleas by him to shall be recorded separately.

- S. 163 CPC provides that for every distinct offence against a person, there shall be
separate charge and every such charge shall be tried separately except those mentioned in
ss. 164, 165, 166 and 170.
- Situations when there are two accused, A1 pleaded guilty but A2 pleaded not guilty:-

o In Lee Weng Sang v PP [1976] 1 MLJ 83, court explained that in a situation
where there are two accused being charged jointly where one pleaded guilty and
another pleaded not guilty, court will proceed to trial and that the former’s plea
will only be considered after trial.
( For instance, if the later was found not guilty after trial, prosecution may
withdraw or amend the charge against the former)
o In Yap See Teck v PP [1983] 1 MLJ 410 **, court explained that in a situation
where there are two accused being charged jointly where one pleaded guilty and
another pleaded not guilty, there are two solutions here by looking at the situation.
First, if the former is a witness for either prosecution or defence, then his case is to
be first disposed of by recording his guilty plea followed by sentencing. Second, if
the former is not a witness for either party, then the situation in Lee Weng Sang’s
case applies here where the former’s plea will be put on hold pending trial against
second the later.
o In practice, Yap See Teck is first choice preference
- In Maung Min Aung v PP [2001] 5 MLJ 140, the accused was charged under the
Immigration Act and Passport Act. On appeal, the High Court found that based on the
trial Magistrate’s note, the plea was a joint plea of guilt. Court herein held that the
accused had not pleaded guilty in accordance to the law. Such irregularity is not curable
under s. 422 CPC. Court order for a retrial and plea of guilty to be set aside.

Plea of Not Guilty (Claim Trial)

- S. 173(c) CPC provides that if the accused refuses to plead, does not plead or claims for
trial, the Court shall proceed to take all such evidence as may be produced in support of
the prosecution.
- Even when the accused pleads guilty but the court finds that the plea was not unreserved,
unqualified or unequivocal.
- At this stage, if there is necessary to do so, the original charge will be amended
- S . 158(1) CPC provides that the court may alter or add to any charge at any time before
judgment is made
- S. 173(h)(ii) CPC provides that in a summary trial before Magistrate Court, court has a
duty to consider and amend the charge where such courts find a prima facie case for
another offence
- In Heng You Nang v PP [1949] MLJ 285, it was held that it is not the duty of the court
under s. 158 CPC to amend the charge as it is for the prosecution to apply for the
amendment. However, under s. 173(h)(ii) CPC, subordinate courts have a duty to
consider and amend charge when the court finds a prima facie case for another offence
- In PP v Salamah bt Abdullah [1947] MLJ 178, court held that the appropriate time to
amend the charge is at the end of prosecution’s case although s. 158 CPC provides that
amendment may be made before judgment.
- In practice, usually the prosecution will open its case as it is the one that is prosecuting
(s. 101 EA 1950 he who asserts must prove). However, this is merely discretionary and
not mandatory as s. 174(a) CPC provides that the officer conducting the prosecution need
not open the case, instead he may immediately produce his evidence. (Summary trial
only)
Somehow, in a High Court trial, it is mandatory for prosecution to open its case as s.
179(1) CPC provides that the officer conducting the prosecution shall open his case by
stating summarily the nature of the offence charged and the evidence by which he
proposes to prove the guilt of the accused.
- The phrase ‘all such evidence’ in s. 173(c) would include any exhibits or documents or
things to be produced as evidence.
- In Chong Ah Chai & Ors v PP [1979] 2 MLJ 262, the evidence involved here was a
cement mixer (stolen object). It was held that given that it was too heavy to be transported
and carried into the court, it can be viewed in situ (on site).
- In PP v Mohamed Said [1984] 1 MLJ 50, court held that ‘all such evidence’ in s. 173(c)
would include all evidence that the prosecution opined will help to prove its case. These
 evidence must also be evidence that are available at the time of trial and not those
evidence not available at trial. In this case, the two material witnesses of the prosecution
could not be traced even after court had given the prosecution time to locate them.
- S. 264 CPC provides that all evidence is to be taken in presence of the accused or his
representative counsel.
- S. 266 (1) CPC provides that all evidence (including examination of witness) is to be
taken down by the Magistrate with his own hand with his legible handwriting in summons
cases before Magistrate Court and shall later form part of the record of proceedings.
- S. 267 CPC provides that in trials of all other cases before a Magistrate s Court including
inquiries under Chapter XI, the evidence of each witness shall be taken down in legible
handwriting by the presiding Magistrate and shall form part of the record of proceedings
later.
- S. 268(1) CPC provides that evidence taken under s. 267 is not to be taken down in
question and answer form, but instead in narrative form.
- S. 270(1) CPC provides that all evidence shall be interpreted to the accused in a language
understood by him before an open court.
- In Fidelis Daniel Enechukwu v PP [2015] 4 CLJ 180, here the appellant was convicted
and sentenced to death for drug trafficking. It was found that there was failure in
providing a Nigerian interpreter for the accused during trial. However, the contention by
the prosecution is that he understands English and there was no miscarriage of justice
against him. The court of appeal opined that this clearly goes against the right of the
accused and hence an order for retrial was made.

Prosecution Witness and issue of Summons

- S. 172(d) CPC provides that the court is to obtain the names of any persons likely to be
acquainted with the facts of the case and to be able to give evidence for the prosecution
from the persons such as the complainant or otherwise if it thinks necessary. It shall also
summon such person(s) to give evidence as it thinks necessary.
- The term ‘complainant’ will include cases of private summons and non-private summons.
- The prosecution has discretion to call any prosecution witnesses (who and how many of
them) and court will not interfere.
- In Adel Muhammed El Dabbah v AG Palestine [1944] 2 All ER 139, the Privy Council
held that the prosecution has discretionary powers to call whatever or whoever as its
 witness where the court will not interfere, unless it was found that the prosecution’s act
was influence by some oblique motive.
- In Muharam bin Anson v PP [1981] 1 MLJ 222, court followed Adel Muhammed El
Dabbah and held that the appellant’s contention that there was failure on part of
prosecution to call the complainant’s son as witness was rejected as it was further held
that the court will not interfere with prosecution’s decision as to who it wishes to call as
witness.
- S. 179(2) CPC provides that the prosecution upon opening of its case shall then examine
his witnesses, who may in turn be cross-examined for the defence and, if necessary, re-
examined.
- In PP v Herman bin Subadi [2011] MLJU 583, court explained that s. 179(2) CPC
merely state the procedure that must be followed while examining witnesses offered to
give evidence in court.
- However, in Teh Lee Tong v R [1956] MLJ 194 **, it was held that all prosecution
witnessed must be brought before court to give evidence. Whichever prosecution witness
not being called to give witness must be informed to the court where he should be made
available to the defence.
Failure to call prosecution witness
- When there is a failure on the part of prosecution to call its witness, then there is
presumption of existence of certain facts (adverse inference)
- In Abdullah Zawawi v PP [1985] 2 MLJ 16 *, Supreme Court held that if a there is a
failure on the part of the prosecution to call particular witness of its own and that such
failure has resulted in a serious gap in its case, then the presumption of adverse inference
under s. 114(g) EA 1950 may be made. In such, the prosecution witness must be offered
to defence to be called as witness to close the gap.
- In Teoh Hoe Chye v PP [1987] 1 MLJ 220, court emphasised that a failure to call
prosecution witness may bring fatality to its case.
- In Ti Chuee Hiang v PP [1995] 2 MLJ 433 *, in this case, the accused was caught red
handed by the police via a police informer to buy heroin from him. It was held that given
that prosecution has discretion to call any prosecution witness to prove BRD, in this case,
prosecution’s failure to call the police informer who is an agent provocateur has resulted a
serious gap in its case.
- In PP v Paosi Arong & Anor [2010] 7 CLJ 1049, the court held that failure of
prosecution to call its witness which could assist in proving possession of a car containing
drugs resulted a gap in its case. The court has no choice but to acquit the accused.
- In Simon Savarimuthu a/l Thevarajah v PP [2020] 2 MLJ 495 *, court of appeal
explained that where the prosecution has failed to call a key witness before Court to be
examined, it would be safe to say that the prosecution has effectively and personally
poked gaps and doubts in their own case and thus, an adverse inference should have
been invoked against the prosecution as under S.114(g) EA 1950.

Cross examination of prosecution witness

- S. 173(e) CPC provides that the accused shall be allowed to cross examine all
prosecution witnesses.
- Right to cross examine prosecution witness includes one that has turned hostile.
- In Dato Mokhtar bin Hashim v PP [1983] 2 MLJ 232 *, court explained that when a
witness has been impeached, there is yet to have ruling on his credibility. As such, if
prosecution witness was impeached, defence can still cross examine him.
- In Kamalan a/l Shaik Mohd v PP [2013] 5 MLJ 127 *, court held that when no
opportunity was given to the accused to complete his cross-examination on the
prosecution witness, it is a clear infringement of the mandatory provision of s. 173(e)
CPC. The accused herein was not given what the laws provide that he is to deserve and
this amounts to miscarriage of justice.
- In Mohd Fuad bin Ismail v Pendakwa Raya [2019] MLJU 271, here the appellant and
the second accused was unpresented throughout the whole trial proceeding. The trial
judge had explained to them on the rights under s. 173(e) CPC where they can cross
examine the prosecution witnesses.
- S. 258 CPC provides that if the accused does not understand proceedings, court may
proceed with trial although he is not of an insane person. (this is a very rare case that
unlikely will happen)

The standard of proof (Prima Facie)

- S. 173(f)(i) CPC provides that at the end of the prosecution’s case, the Court shall
consider whether the prosecution has made out a prima facie case against the accused.
- S. 173(f)(ii) CPC provides that if the Court opine that there is no prima facie case made
against the accused, then it shall record an order of acquittal.
- S. 173(h)(i) CPC provides that if court finds that a prima facie case has been made
against accused on the offence charged, then it shall all for the accused to enter into his
defence.
- Mozley & Whitely’s Law Dictionary: A litigating party is said to have prima facie case
when the evidence in his favour is sufficiently strong for his opponent to be called on to
answer it. A prima facie case then is one which is established by sufficient evidence and
can be overthrown only by rebutting evidence adduced by other side.

1. Pre Haw Tua Tau approach

- In Haw Tua Tau v PP [1981] 2 MLJ 49, Privy Council held that Prima facie means it is
not a case which is capable of satisfying BRD, not maximum evaluation, but only
minimum evaluation.
- But somehow this is inconsistent with CPC definition that at that time.
- S. 173(f) CPC provides that if upon all evidence… the court finds no case against the
accused has been made out which if unrebutted would warrant a conviction, the court
shall record an order of acquittal. (pre 1997) (this clearly suggests maximum evaluation)
- In PP v Chin Yoke [1939] 1 LNS 66, court explained that a litigating party is said to have
a prima facie case when the evidence in his favour is sufficiently strong for his opponent
to be called on to answer it. A prima facie case is one which is established by sufficient
evidence and can be overthrown only by rebutting evidence adduced by the other side.
However, if after weighing up such evidence for the prosecution one is satisfied that it
would be wholly unsafe to convict upon such evidence standing alone, then no prima
facie case has been made out and the accused should not be called on for his defence.
(maximum evaluation)
- In PP v Saimin [1971] 2 MLJ 16, court held that the evidence disclosed a prima facie
case when it is not contradicted and if believed, it would be sufficient to prove the case
against the accused. (maximum evaluation)
- The Haw Tua Tau test
o In Haw Tua Tau v PP [1981] 2 MLJ 49, Privy Council explains that the court has
to act upon two presumptions at the end of prosecution’s case where:-
 i. All evidence of facts is true unless it is inherently incredible that no
reasonable person will accept it as true;
ii. Nothing can displace the inference reasonably drawn from the facts if
there is no further explanation
o In simple words, Privy Council is saying that if the accused remains silent when
there is some evidence not amount to proof BRD against him, he will be acquitted.
But if the accused remains silent when there was some evidence which amount to
proof BRD, then he will be convicted.
o However, an accused may still be acquitted at the end of trial even if he did not
give evidence as the judge has a duty to weigh the evidence to determine if
prosecution had established its case BRD
o This Haw Tua Tau test herein requires minimum evaluation of evidence at the
close of prosecution’s case (evidence not inherently incredible).
- Cases following Haw Tua Tau:
o In A. Ragunathan v PP [1982] CLJ Rep 63, it was held that the questions
referred to herein are submissions that there is no case for the applicant to answer
at the close of the prosecution case. It is said that the prosecution had failed to
adduce any evidence that the applicant was a public officer and therefore has
failed to establish a prima facie case against him which brings into effect s. 173(f)
CPC.
o In Sebastiano Robert Pavone v PP [1983] 2 CLJ 225, court held that whether or
not Prima Facie case is constituted, if there is such sufficient evidence to satisfy
ingredients of the offence, then the defence must be called.
- Cases NOT following Haw Tua Tau:
o In Khoo Hi Chiang v PP [1994] 2 CLJ 151, Supreme Court held that a prima
facie case was established when it was proved BRD, since only a case that was
proved BRD could warrant a conviction, if such case remained unrebutted.
(maximum evaluation)
o In Arulpragasan Sandaraju v PP [1996] 4 CLJ 597, Federal Court followed
Khoo Hi Chiang and held that a prima facie case was deemed established when it
was proved BRD, as only a case that was proved BRD could warrant a conviction,
if such case remained unrebutted. (maximum evaluation)
- Cases proposing Hypothetical BRD:
 o In Tan Boon Kean v PP [1995] 4 CLJ 456, it was held that although this court is
bound by the ratio in Khoo Hi Chiang (maximum evaluation), such evidence need
not to be conclusive of the guilt of accused but should only be on the hypothetical
BRD basis. The court is to decide whether the accused is guilty or not only at the
conclusion of trial. (NOTE: this case was overruled by Arulpragasan Sandaraju)
2. Post Haw Tua Tau approach (1997 amendment)
- S. 173(f) CPC provides that when the case for the prosecution is concluded, the court
shall consider whether the prosecution has made out a prima facie case against the
accused. (1997 to 2007)
- Here there was removal of the phrase “case that warrants a conviction if unrebutted”,
replaced with prima facie, but forgot to include definition of prima facie
- In PP v Dato Seri Anwar Ibrahim (No.3) [1999] 2 MLJ 1, court explained that as a
result of 1997 amendment, a prima facie case in s. 173(f) CPC must mean ‘a case which
if unrebutted would warrant a conviction.
- In Looi Kow Chai v PP [2003] 1 CLJ 734, court of appeal explained that under s. 180
CPC (high court trial), a judge must base on the prosecution evidence to a maximum
evaluation and ask himself that if he decides to call upon the accused to enter his defence
and he elects to remain silent, is he prepared to convict him on the evidence in
prosecution’s case? If the answer is negative, then no prima facie case has been made and
accused would be acquitted.
- In Balachandran v PP [2005] 2 MLJ 301, Federal Court held that an accused can be
convicted on prima facie evidence but it must have reached a standard which supports the
conviction BRD. Proving BRD herein involves two aspects, namely the legal burden on
the prosecution to prove its case BRD and evidential burden on the accused to raise a
reasonable doubt. These burdens can only be discharged at the end of the whole case and
a case can only be said to have proved BRD at the conclusion of trial. However, where an
accused has not given evidence and remained silent, it is not necessary to re-evaluate the
evidence. The prima facie evidence capable of supporting a conviction BRD will
constitute proof BRD.
3. The 2007 amendments up to current position
- S. 173(f)(i) CPC provides that at the end of the prosecution’s case, the Court shall
consider whether the prosecution has made out a prima facie case against the accused.
- S. 173(f)(ii) CPC provides that if the Court opine that there is no prima facie case made
against the accused, then it shall record an order of acquittal.
- S. 173(h)(i) CPC provides that if court finds that a prima facie case has been made
against accused on the offence charged, then it shall call for the accused to enter into his
defence.
- In PP v Hanif Basree Abdul Rahman [2008] 3 CLJ 161, YAA Tun Zaki CJ explained
that the term prima facie is defined as ‘where the prosecution adduced credible evidence
proving each ingredient of the offence which if unrebutted would warrant a conviction.’
The saga of the prima facie case will continue when the curtain rises again in the near
future.
(Problem with prima facie as in HTT might rise again if FC in the future decides)
- In Losali v PP [2010] 8 CLJ 560, the court of appeal made reference to Balachandran’s
and held that in order to ascertain whether a prima facie case has been made out against
the appellant, the prosecution’s evidence must be evaluated at a maximum level. In
present appeal, court agreed that the learned trial judge should have ruled that a prima
facie case was made against the first accused as prosecution already has sufficient
evidence to prove his case against first accused together with other two accused by
reading the charge together with s. 34 Penal Code.

Acquittal and Discharge

- S. 173(g) CPC provides that nothing in paragraph (f) shall prevent the Court from
discharging the accused at any previous stage of the case if for reasons to be recorded by
the Court it considers the charge to be groundless.
- In simple words, court may discharge accused if charge is groundless before the close of
the prosecution's case.
- However, the provision is silent as to what amounts to ‘groundless charge’.
- In Chu Chee Peng v PP [1973] 2 MLJ 35 *, court explained that charge is deemed
groundless when the very corner stone of prosecution's case collapses at the very early
stage for various reasons.
- In PP v Uthaya Kumar a/l Ponnusamy & Ors [2011] 7 MLJ 575, court explained that
if a charge does not sufficiently laid down the essential features of the offence made
against the accused, it becomes a charge that is not known in law. As such it becomes
liable to be dismissed by the court on the reason that it is groundless. A groundless charge
may be dismissed under s 173(g) CPC.
- The word ‘discharge’ means that the court may only discharge not amounting to acquittal
(DNAA) if charge is groundless.
- In PP v Mohamed Said [1984] 1 MLJ 50 **, court explained that to determine whether if
a charge is groundless, the court must note on few situations:-
o Where investigations are completed by the police, the court should postpone the
case if the prosecution are not ready to proceed due to unavailability of witnesses
o If the investigations are yet to be completed and the prosecution are still not
ready with their case, it would be reasonable for the court to infer that the charge
was groundless and grant a DNAA
o Where a prosecution was conducted by a person who is not empowered to do so, it
does not render the charge groundless
o Failure of the prosecution to supply to the defence certain requested documents
would not constitute a good ground entitling the magistrate to discharge the
accused
o Absence of a DPP or prosecuting officer is not a sufficient ground to entitle the
discharge of the accused
- In PP v Au Seh Chun [1998] 6 MLJ 179 *, it was held that under s 173(g) a discharge
not amounting to an acquittal may be made when the charge appears to be groundless ab
initio or that it was found to have no good grounds. But when no evidence shows that the
charge is groundless, then the court shall postpone the case.
- In PP v Zalili bt Mustapha [2010] 1 MLJ 666 **, it was held that a case that has been
going on for a period of time does not render the charge to be groundless. In order to
determine whether a DNAA or a postponement is to be granted, the court must see if the
police investigation has been completed. If the police investigation is completed, then a
postponement shall be granted and if it is not, then an order for DNAA is to be made.
- In PP v Karumah [1980] 2 MLJ 102, it was held that although when investigation has
been completed but if there was absence of witness(s), then the court shall grant
postponement and not DNAA.
- In PP v Ling Leong Kong [2008] 8 MLJ 236 , it was held that before the court invokes s.
173(g) CPC, it must at least allow the prosecution to proceed with its case first. However,
the final say is on the court to determine whether or not the charge is groundless by
evaluating the evidence and circumstances.

Entrance of Defence

- S. 173(h)(i) CPC provides that if the Courts finds that prosecution has established a
prima facie case against accused, it shall then call upon the accused to enter on his
defence.
- Apply prima facie cases above
- S. 173(h)(ii) CPC provides that if the Court finds that prosecution has established a prima
facie case against the accused on an offence other than the offence charged which the
Court is competent to try, the Court shall amend the charge.
- S . 158(1) CPC provides that the court may alter or add to any charge at any time before
judgment is made
- In Heng You Nang v PP [1949] MLJ 285, it was held that it is not the duty of the court
under s. 158 CPC to amend the charge as it is for the prosecution to apply for the
amendment. However, under s. 173(h)(ii) CPC, subordinate courts have a duty to
consider and amend charge when the court finds a prima facie case for another offence
- In PP v Salamah bt Abdullah [1947] MLJ 178*, court held that the appropriate time to
amend the charge is at the end of prosecution’s case although s. 158 CPC provides that
amendment may be made before judgment. Amendments made at the end of defence’s
case will only be allowed provided that the rights of accused are not affected
- In PP v Tan Kim Kang [1962] MLJ 388 *, court held that it is to be seen that s. 158 CPC
provides for the court to make amendments to a charge before judgment is made. Hence it
can also to be said that it is permissible for amendment to be made after defence has been
called. This is because it will be safer if we are to follow ss. 173(h),(i) and (j) CPC as it is
quite clear from the provision which states that the court should make any amendment or
alteration on the charge only at the close of the case for prosecution
- In PP v Tan Chai Hing [2016] MLJU 708 *, court held that the important thing here is
that any amendment or alteration to a charge shall not cause confusion to the accused in
regards to the offence he is being charged with.
- In PP v Francis Dang ak Nuya [1988] 1 MLJ 89, court held that it is a must for the
prosecution to apply leave from the court if it wishes to amend a charge
- S. 158(2) CPC provides that any alteration or addition of the original charge shall be
read and explained to the accused.
- In Ng Terk Chai v PP [2013] 4 CLJ 342 **, it was held that the High Court judge has
breached s.158 and 162 CPC. The charge was amended by the learned High Court Judge,
but the appeal records did not show the existence of any amendment of charge as well
as whether it has been read and explain to the accused. In addition, an option to recall
witnesses was also not seen to be given to the accused. The procedural effect herein had
occasioned to a failure of justice which is not curable under s. 422 CPC. Conviction and
sentence were set aside.

The Defence’s case

- S. 173(ha) CPC provides that when the accused was called upon to enter into his defence
under (h)(i), the Court shall read and explain to him three options available to him such
that he may choose to:-
(i) Give sworn evidence in witness box
(ii) Give unsworn evidence from the dock
(iii) Remain silent
1. The accused remains silent
- S. 257(2) CPC provides that prosecution shall not contend that silence on the part of
accused amounts to adverse inference.
- In Kartigeyan a/l Krishnan v PP [2012] 4 AMR 792, here the accused was charged for
the offences of rape and murder in which the court later found him guilty. He chooses to
remain silent. Court of appeal explains that when an accused elects to remain silent, the
court has no choice but to convict him as he has failed to rebut evidence against him by
prosecution.
- In Azmi bin Ismail & satu lagi v Pendakwa Raya [2019] 7 MLJ 45 , it was held that the
trial judge did not erred in his judgment in convicting the two accused when they elected
to remain silent when being called upon to enter into their defence. By remaining silent,
both the accused had failed to rebut all the evidence in the prosecution’s case which had
been evaluate in a way of maximum evaluation as per Balanchandran’s case by the
learned trial judge at the end of prosecution’s case.
2. Accused makes an unsworn statement from the dock
- In this situation, the accused is not subject to cross examination by the prosecution.
- In Mohamed Salleh v PP [1969] 1 MLJ 106, Supreme Court emphasised that since the
accused is not subject to cross examination when he elects to give unsworn evidence, the
court in accessing it must attach it to a weight the Court thinks fit.
- In Dato Seri Anwar Ibrahim v PP [2015] 2 CLJ 145, here the appellant opted to give to
unsworn statement from the dock, where he denied to have sodomised the complainant.
Federal Court herein affirmed that Court of Appeal’s finding that appellant has failed to
raise any reasonable doubt on prosecution’s case.
- In PP v Cheah Chong Tatt & Anor [2017] MLJU 579 *, the court referred to PP v
Mohd Amin Mohd Razali (2002), where it was held that an unsworn evidence will still be
consider by our courts as evidence. However, less weight will be accorded to it as
compared to a sworn evidence because in the later, the accused is allowed to be cross
examined in which he can be assessed on his credibility.
3. Accused makes sworn statement on oath from the witness box
- In this situation, the accused is subject to Examination in Chief, Cross Examination and
Re Examination
- This allows the credibility or the truthfulness of accused to be tested in open court.
Amendment of charge (at this stage when he is called to enter defence)
- s. 173(i) CPC provides that if charge against the accused has been amended, it shall be
read to him again and he shall be again asked whether he is guilty of the offence in the
charge as amended.
- In Lim Thuan Hong v Jebsen [1985] 4 Ky 79, it was held that it is of mandatory for
amended charge to be read and explained to the accused.
- In Hee Nyuk Fook v PP [1988] 2 MLJ 360, court held that the failure to read and explain
the charge to the accused after amendment is not fatal depending on the facts of the case
(wrongly decided)
- Can also reuse amendment of charge case above
- s. 173(j)(i) CPC provides that if the accused pleads guilty to the amended charge, such
plea is to be recorded and he may be convicted where the Court shall pass sentence in
accordance to law. This is save in accordance that when the Court records the plea, it
must ensure that accused UNCP and intends to plead guilty without qualification, the
offence alleged against him.
- Can reuse UNCP cases
- S. 173(j)(iii) CPC provides that when the accused is being called to enter into his
defence, he must be allow to give evidence and to recall and cross examine any witness.
This is save in accordance that if the accused himself is to be called as witness, his
evidence must first be taken before other witnesses for the defence and that he may be
cross examined by counsel of other accused (if there are any).
- As for prosecution’s right to recall witness at this stage, CPC is silent but in practice it is
allowed. Prosecution herein may apply under s. 425 CPC which provides that Court may
at any stage of proceedings summon or recall any witnesses if his evidence is deemed
essential to the decision of this case.
Recalling of witness
- See s. 173(j)(iii) CPC above
- See s. 425 CPC above
- In PP v Yap Kok Meng [1974] 1 MLJ 108, it was held that prosecution shall be allowed
to recall prosecution’s witness provided it is before the end of prosecution’s case.
- In Ramli bin Kechik v PP [1986] 1 CLJ 308, here the court allowed the application made
by prosecution under s, 425 CPC so as to comply with the principle of justice which is to
enable the court to get at the truth and come to a proper conclusion (whether a prima facie
case is established)
- S. 162 CPC **provides that when a charge is altered or added by the court after the trial
commence, the prosecution and accused must be allowed to recall, re-summon and re-
examine witness with reference to such alteration or addition

- In Yeow Fook Yuen v R [1965] 2 MLJ 80, court held that s. 162 CPC is appropriate to be
read together with s. 138(4) Evidence Act 1950 which provides that the court may allow a
witness to be recalled either for further examination-in-chief or for further cross-
examination in which the parties shall also have the rights for further cross-examination
and re-examination respectively.
- In PP v Tan Chai Hing [2016] MLJU 708 **, court held that the important thing here is
that any amendment or alteration to a charge shall not cause confusion to the accused in
regards to the offence he is being charged with. The court herein is aware of the defence’s
objection on the application by prosecution for amendment, but it has to be rejected as
such amendment did not cause any miscarriage of justice to the accused at the end of the
prosecution’s case. The accused person was still given opportunity to recall prosecution
witnesses for cross-examination, opportunity to prepare additional submission and was
allowed to file in alibi notice if there is any. In this context, the amendment of charge
herein did not result in any confusion nor prejudice against the accused as it is in line
with evidence provided before court.
- S. 138(4) CPC provides that Court may allow a witness to be recalled either for the
purpose of further examination in chief or cross examination and the parties in the
proceeding shall have such rights to further cross-examination and re-examination
respectively.
- In Kee Lik Tian v PP [1984] 1 MLJ 306, here there was a recall of complainant in a rape
trial to be further cross-examined by defence. However, the trial court refused
application. On appeal, High Court allowed the recalling as it is justified pursuant to
s.138 (4) EA 1950.

Written statement by accused

- S. 173(k) CPC provides that if the accused puts in any written statement, the court shall
file it with the record.

Court to compel production of document and/or attendance of witness

- S. 173(l)(i) CPC provides that if the accused applies to the Court to issue any process for
compelling the attendance of any witness (can be new or previously examined) for the
purpose of examination or cross-examination or the production of any document or other
thing, the Court shall issue the process unless it considers that the application should be
refused on the ground that it is made for the purpose of vexation or delay or for defeating
the ends of justice, in which case that ground shall be recorded by it in writing.
- S. 173(l)(ii) CPC provides that the Court before summoning any witness on such
application, may require that his reasonable expenses incurred in attending for the
purposes of the trial be deposited in Court.

Judgment or Sentence

- S. 173(m)(i) CPC provides that at the end of trial, the Court is to consider all evidence
adduced before it and shall decide whether the prosecution has proved its case beyond
reasonable doubt.
- In Woolmington v DPP [1935] UKHL 1, in this case, the accused was charged with
murder of his wife by shooting her with a gun. The accused pleaded accident that the gun
went off accidentally and killed his wife. The prosecution could not prove the malicious
intention whereas the accused could not establish the defence of accident. The House of
Lords held that the prosecution not only must prove the guilt of the accused BRD, it must
also prove the MR for the offence. If at the end of the case, there is a reasonable doubt as
to whether the accused killed the deceased with malicious intention, the accused must be
acquitted.
- In Mat v PP [1963] 1 MLJ 263, the court laid down few guideline in pertaining to the
burden of proof on the prosecution where:-
o If it is satisfied BRD as to the accused’s guilt, he must be convict;
o If it is accepted/believed that as to accused’s explanation, he must acquit;
o If it is unacceptable/unbelievable on the accused’s explanation, do not convict him
to but consider the steps below;
o If it is not acceptable/unbelievable as to the accused’s explanation and that
explanation does not raise a reasonable doubt , he must be convict;
o If one do not accept/believe the accused’s explanation but it raises reasonable
doubt, then he should be acquit.
- In PP v Saimin [1971] 2 MLJ 16, court explains that reasonable doubt is the doubt which
makes one hesitates as to the correctness of the conclusion, a doubt so solemn and
substantial which produced uncertainty as to the verdict to be given. A reasonable doubt
must be a doubt arising from evidence and cannot be an imaginary doubt.
- S. 173(m)(ii) CPC provides that when the court finds that prosecution had proven its case
beyond reasonable doubt, it shall find the accused guilty and he may be convicted on it
and the Court shall pass sentence according to law. This is save in accordance that before
 passing of sentence, the Court shall call for the victim or his family member to give a
statement of the impact of the offence on the victim as well as his family if there is any
request of such made by the victim. In case the victim or the victim’s family member
cannot attend the proceeding upon being called by the Court, the Court will have a
discretion to admit the impact statement made in writing.
- In PP v Jafa bin Daud [1981] 1 MLJ 315, court explained that to be sentence “according
to law” would mean according to penal provision of punishable sections and to accepted
judicial principles.
- S. 173A CPC provides that when a person is charge with an offence which the court finds
it difficult or not suitable to pass any sentence or other than a nominal sentence or that it
is suitable to release him on probation, the court may by taking into considerations based
on factors such as character, antecedents, age, health or mental condition of the person
charged, or to the trivial nature of the offence, or to the extenuating circumstances under
which the offence was committed, the court may record a conviction and follow with an
order of dismissal upon giving warning or discharge with bond of good behaviour with or
without surety and to appear for the conviction to be recorded and for sentence when
being summoned at any time during such period, not exceeding three years, as may be
specified in the order. (binding over)
- In PP v Yeong Yin Choy [1976] 2 MLJ 267 *, court opined that s. 173A will only be
invoked in “very deserving cases” for both adult and/or youthful offenders when by
looking at the nature of the offence and circumstances of the case it clearly shows that no
conviction is to be recorded.
- S. 294(1) CPC provides that when a person has committed an offence in which the court
thinks that it is suitable, he may be release on probation of good conduct, provided that
the court must take into consideration of his character, antecedents, age, health or mental
condition of the offender or to the trivial nature of the offence or to any extenuating
circumstances. Also, the court may direct him to be released on a bond with or without
sureties instead of sentencing him at once to any punishment in which during such period.
(for first time offender)
- S. 294 CPC is usually applicable to offences of a more serious category where a record of
offence is necessary.
- In Lim Yoon Fah v PP [1971] 1 MLJ 37, here it was found that appellant came from a
good family and is undergoing training as a motor mechanic and in this case, he was
 obviously misled by his friend in the commission of the offence. As such , court ordered
him to be put on bond under s. 294 for three years with one RM 1000 surety.

DNAA in private summons and compoundable offence

- S. 173(n) CPC provides that Court may discharge the accused not amounting to acquittal
at any time before the accused is called to enter into his defence when proceedings have
been instituted upon a complainant.

Hearing in absence of accused

- S. 173(o) CPC provides that if the accused is absent after he is being served a summon
and that there are insufficient grounds for adjournment, the court may either proceed to an
ex parte hearing or to adjourn the hearing.

Demeanour of witness
- S. 271 CPC provides that a presiding Magistrate in the course of recording evidence of a
witness may make a remark on the demeanour of the witness at the foot of the notes at the
conclusion of evidence.
- Black’s Law Dictionary: Outward appearance of behaviour such as facial expressions,
tone of voice, gestures and hesitation or readiness to answer questions.
- In Low Toh Cheng v PP [1941] MLJ 1, court held that a Magistrate can choose not to
believe a witness and that he must provide the reasons for his opinions.
- In Tara Singh v PP [1949] MLJ 88*, court explained that an impression of demeanour of
the witness is only to be taken into consideration by a trial judge after assessing the
totality of his evidence. (the last thing to consider after seeing his testimony)
- In David Anthony v PP [1985] 1 MLJ 453, here the learned Magistrate did not record for
demeanour of witness but has written three times of the word ‘demeanour’ on the
marginal column of the record of evidence. On appeal, High Court explained that the
purpose of demeanour under s. 271 is only to assist the appellate court to access the
weight to be attached to the evidence of the witness. Court herein ordered for retrial as
it opined that there are likelihood of bias.
- In PP v Ramanathan Chelliah [2009] 3 MLJ 247, the application of s. 271 CPC is
subject to the court’s discretion.
- In Mohd Syafik Azri bin Arman Ali v Pendakwa Raya [2017] MLJU 233, the counsel
for the appellant argued that there wasn’t any record made by the trial judge on
 demeanour of witnesses SD2 and SD3 in the notes of proceeding as per s. 271
requirement. Court held that the notes of proceeding which showed the trial judge’s
finding that SD2 and SD3’s evidence did not helped much as they did not witness how
the accused was chased, arrested and apprehended is sufficient even that there wasn’t any
contemporaneous record on the witness demeanour.

Defence of alibi

- Initially before amendment s. 402A(1) CPC provides that when an accused intends to
put forward a defence of alibi, he must give a written notice to the PP at least 10 days
before commencement of the trial.
- But now after amendment, the 10 days period has been removed where notice of alibi
now can be given during case management or if given during trial (at a reasonable time).
- S.402A(1) CPC provides that the court shall inform the accused to his right to put
forward a defence of alibi at the time the accused was being charged.
- S.402A(2) CPC provides that where the accused put forward defence of alibi, he shall put
forward a notice of his alibi during the case management process.
- S.402A(3) CPC provides that the accused may adduce evidence in support of his alibi at
any time during the trial with two conditions:
o The accused must give written notice of alibi to PP
o The PP is given reasonable time to investigate the alibi before such evidence can
be adduced.
- S. 402A(4) CPC provides that the accused in his notice of alibi shall include particulars
of the place where the accused claims to have been at the time of the commission of the
offence with which he is charged, together with the names and addresses of any witnesses
whom he intends to call for the purpose of establishing his alibi.
- The objective of s. 402A CPC can be seen in Vasan Singh v PP [1989] 1 CLJ 166,
where Supreme Court explained that s. 402A was added into CPC to prevent the accused
from putting up element of surprise at the trial. For instance, he is to raise the defence of
alibi by giving notice to the PP and not to keep this defence until the very last moment. In
case, the procedural requirement in s. 402A here is not being followed, it will result in
accused’s evidence being excluded.
- In Yau Heng Fang v PP [1985] 2 MLJ 335, Supreme Court held that in all criminal
trials, the accused is deemed to be innocent until proven guilty. There is no burden placed
 on the accused to prove his innocence. Defence such as alibi placed merely an evidential
burden of introducing some evidence enough to create a reasonable doubt to the mind of
judge.
- In Illian v PP [1988] 1 MLJ 421 *, Supreme Court explained that in raising the defence
of alibi, all the accused needs to do is to cast a reasonable doubt that he was not the
person at the crime scene. In another word, the accused only bears the evidential burden
of proof.
- In Wong Kim Leng v PP [1997] 2 MLJ 97*, it was held that when there is material
amendment to the charge made by the prosecution, it cannot deprive the accused’s right
on defence of alibi. The prosecution should still investigate the alibi raised.
- In Azilah bin Hadri & Anor v PP [2013] 5 MLJ 309, court of appeal referred to Yau
Heng Fang v PP and held that an accused who plead the defence of alibi bears no legal
burden to establish it. The question to be considered is whether defence casted reasonable
doubt in prosecution’s case.

Questions by the Court

- Our CPC is somehow silent as to the power of the court to question witness.
- S. 165 EA 1950 provides that for the purpose to discover or to obtain proper proof of
relevant facts, the judge may ask any question in any form at any time of any witnesses.
- S. 256(1) CPC provides that the Court may question the accused at any stage of a trial in
order to enable him to explain any circumstances appearing in evidence against him if the
Court considers it to be necessary.
- See s. 256(2) to (9) too long to summarize, it’s quite direct LOL
- In Gan Kok Liong v PP [1969] 1 MLJ 30, here one of the grounds of appeal was that the
learned trial judge has unfairly cross examined the appellant. High Court held that the
learned trial judge was right in questioning the appellant for the purpose of seeking the
truth.
- In Lim Chin Poh v PP [1969] 2 MLJ 159, here the defence counsel contended that the
trial judge has conducted the trial in an unfair manner and that the later intervened on
numerous occasions and even said that he was displeased and annoyed with appellant.
On appeal, it was held that there was no evidence showing that the trial judge has sided
with prosecution. Court also added that it should be noted that it is deemed a fair trial
when both defence and prosecution are represented by a counsel where as such, the court
is be slow in intervening unless it is necessary for it to do so.
- In Rahbar Yadollah Fathi v PP [2020] 2 MLJ 737 *, court explained that a trial judge
has wide power under s. 165 EA 1950 to question witnesses or the parties concerned on
any fact in order to discover relevant facts pertaining to the case at hand. Here, the
‘intervention’ of the trial judge in asking questions during the trial does not mean that he
is taking over the prosecution. The questions posed were merely for clarification which
the court was allowed to do under s. 165.

Address and Submission to Court

- S. 174(a) CPC provides that it is not necessary for an officer conducting prosecution to
open the case but he may immediately produce his evidence
- S. 174(b) CPC provides that when the accused is called to enter into his defence, the
accused by himself or through his counsel open his case stating the facts or law on which
he intends to rely on the evidence for the prosecution and may sum up his case if defence
adduce evidence
- S. 174(c) CPC provides that the officer conducting the prosecution shall have the right of
reply on the whole case when the accused has adduced evidence.
- In Lee Kwan Woh v PP [2010] 2 AMR 231, here the trial judge refused to hear
submission of no case to answer by the defence as he was satisfied that the prosecution
had made out a prima facie case. On appeal, Federal Court held that it is of a
constitutional right guaranteed under Art. 5 Federal Constitution for the accused to have a
fair trial. This includes his right to make a submission of no case at the close of the
prosecution’s case. Here the accused’s right under Art. 5(1) has been violated where he is
entitle for his conviction to be set aside
- In Roslan Bin Maalik v Pendakwaraya [2016] MLJU 1265, court explained that the
phrase “may sum up his case” in s. 174(b) CPC would mean that the provision gives a
discretion or choice to the accused to address the court at the close of the case. The court
would be called upon to consider the closing address of the accused only if the accused
had chosen to exercise his rights as prescribed in section 174(b) CPC. Such address may
be made orally or in writing or in a manner directed by the court. The purpose of giving
the accused the right to sum up his case at the close of trial is to ensure that the accused is
given all opportunity to present his case and move the court.

Criminal Procedure II - Recent trends in Summary trial

Defence of alibi
- See above

Proof by written statement

- Initially, Evidence of witnesses were given before court orally, where statements of
witnesses which were admitted under S.32 EA 1950 and S.399 CPC were admissible.
- There were no statements of agreed and admitted facts by the parties.
- However, after amendment on our CPC, a new s. 402B was added allowing both defence
and prosecution to tender evidence in the form of written statement during examination
in chief to save the court’s time
- S. 402B(1) CPC provides that a written statement by any person with the consent of the
parties to the proceedings and subject to the conditions contained in (2), shall be
admissible as evidence as if oral evidence was given by that person.
- S. 402B(2) CPC provides that a statement may be tendered as evidence under (1)
provides that:-
(a) the statement purports to be signed by the person who made it;
(b) the statement contains a declaration by that person certifying that it is true to the
best of his knowledge and belief; and
(c) a copy of the statement is served, by or on behalf of the party proposing to tender it,
on each of the other parties to the proceedings not later than fourteen(14) days
before the commencement of the trial unless the parties otherwise agree.
- In Mahdi Keramatviyarsagh v PP [2015] 3 CLJ 336, in this case the appellant appealed
against his conviction by the High Court against him for drug trafficking. On appeal,
court of appeal allowed the appeal and held that it is clear by looking at the wordings of s.
402B which states that conditions in subsection (2) must be satisfied before a written
statement can be admissible as evidence. In this case, the written statement by the chemist
did not contain any signature of himself and also any declaration required under s.
402B(2).

Proof by Formal Admission

- After the amendment to our CPC, a new s. 402C was added where now both the
prosecution and accused can agree upon certain facts to be adduced at the trial.
- The “pre-trial agreement” can contain such admitted facts so as to narrow down issues
- Can be any facts such as location, evidence, etc as long as facts admitted must be in
writing and signed by both parties
- S. 402C(1) CPC provides that any fact of which oral evidence may be given may be
admitted for the purpose of those proceedings by or on behalf of the PP or accused. The
admission by any party of any such fact under this section shall as against that party be
conclusive evidence in those proceedings of the fact admitted.
- S. 402C(2) CPC provides that an admission under this section:
(a) may be made before or during the proceedings and shall be in writing and signed by
both parties;
(b) if made otherwise than in the Court, shall be in writing;
(c) if made in writing by an individual then shall be signed by the person making it and if
so made by a body corporate, shall be signed by a director or manager, or the secretary
or clerk, or some other similar officer of the body corporate;
(d) if made on behalf of an accused who is an individual, shall be made by his advocate;
(e) if made at any stage before the trial by an accused who is an individual, shall be
approved by his advocate (whether at the time it was made or subsequently) before or
during the proceedings in question.

Disposal of seized articles

- s. 407A(1) CPC provides that the Public Prosecutor may apply to the Court for the
disposal of any articles specified in (2) at any time.
- S. 407B(2) CPC provides that the following seized articles may be disposed of under this
section:
(a) dangerous drugs seized under the Dangerous Drugs Act 1952
(b) clandestine drug laboratories or premises;
(c) valuable goods;
(d) cash money;
(e) noxious, deleterious, corrosive, explosive, dangerous, toxic, flammable, oxisidsing,
irritant, harmful, poisonous, psychotropic and decay substances;
(f) video compact discs, optic discs, films and other similar devices;
(g) publication, books and other documents;
(h) vehicles, ships and other forms of conveyance;
(i) equipment and machineries;
(j) timber and timber products;
(k) rice, food and other perishable items; and
 (l) other articles as may be determined by the Public Prosecutor that may be vulnerable
to theft, substitution, constraints of proper storage space, high maintenance costs or
any other considerations as the Public Prosecutor deems relevant.

Order for payment of costs of prosecution

- Prior to amendment on CPC, Court may order either or both:-

o payment by the accused of the prosecution cost
o compensation to any person or his representative regarding injury to person,
character or income property.
- s. 426(1) CPC the Court before which an accused is convicted of an offence may
(a) in its discretion, make an order for the payment by the convicted accused of the
cost of his prosecution or any part thereof as may be agreed by the Public
Prosecutor; or
(b) where:
(i) the prosecution of the convicted accused involves evidence obtained pursuant to a
request made under the Mutual Assistance in Criminal Matters Act 2002
(ii) the accused has obtained pecuniary gain,
upon the application of the Public Prosecutor, shall make an order for the payment by the
convicted accused of the cost of his prosecution or any part thereof, the sum of which is
to be fixed by the Court as may be agreed by the Public Prosecutor.

Mode of taking and recording evidence in inquiries and trials

- s. 264 CPC provides that except as otherwise expressly provided all evidence taken under
Chapters XIX and XX shall be taken in the presence of the accused or in the presence of
his representative counsel if his attendance has been dispensed by Court.
- This section makes it obligatory for the evidence to be taken in the presence of the
accused
or his counsel if his personal attendance has been dispensed with by the Court.
- S. 265 CPC provides that in inquiries and trials under this Code by or before a Magistrate
the evidence of the witnesses shall be recorded in the manner provided by this Chapter.

Pre-Trial Discovery – s. 51 v s. 51A (during case management)

 A) Pre Amendment
- S. 51(1) CPC provides that where a Court or police in the course of investigation
considers that the production of any property or document is necessary for the purposes of
any investigation, inquiry, trial or other proceeding, such Court may issue a summons or
such officer a written order to the person in whose possession or power such property or
document is believed to be requiring him to attend and produce it or to produce it at the
time and place stated in the summons or order.
- Application under this section is to be made via a notice of motion to the Court.
- In PP v Raymond Chia Kim Chwee [1985] 2 MLJ 436, Supreme Court emphasised that
the right for production of documents under s.51 is a right exercisable at the discretion of
the Court. Being a final order, however it is still appealable under s. 307 CPC.
- In Datuk Tiah Thee Kian v PP [2002] 1 MLJ 585, court explained that what was laid
down by the Supreme Court in PP v Raymond Chia Kim Chwee & Anor was merely
general rule. There was no intention on the part of Supreme Court to lay down a strict or
rigid rule that the documents desired to be inspected by the defence must in every case be
specified in the charge before the application could be granted. What was meant by
saying 'as a general rule' was that there could be situations where the application for
inspection of documents ought to be allowed although the documents were not specified
in the charge if the circumstances of the case so permits.
- In Siti Aisyah v PP [2019] 4 MLJ 46, court of appeal referred to Raymond Chia v PP and
held that in exercising the discretion under s. 51 CPC, the court must consider the justice
of the case.
- ‘Person in whose possession’ includes prosecution (in possession of documents). Hence,
the accused may apply for production of documents by prosecution.
- In Kamal Hisham bin Jaafar v PP [2017] 11 MLJ 663, court cited PP v Raymond Chia
which held from the plain wordings of s. 51, it is clear that this section enables the court
or police officer (as the case may be) if it or he considers that the production of any
document or material is necessary or desirable, to issue a summons (court) or a written
order (police officer) to the person in whose possession or power the material or
document is believed to be requiring such person to attend and produce the material or
document at the time and place as stated in the summons or written order.
- ‘Requiring him to attend and produce’ enables the applicant to apply for production of
documents for inspection.
- But, the applicant has to make copies of the documents himself.
- In Haji Abdul Ghani bin Ishak v PP [1980] 2 MLJ 196 *, court explained that despite s.
51 CPC did not obliged the police like what was provided under s. 76 EA 1950 to supply
certified copies of documents sought for, this section also did not forbid the applicant
form making copies of them by himself.
- Application under s. 51 herein can be made at any time (trial or pre-trial)
- In PP v Raymond Chia Kim Chwee [1985] 2 MLJ 436**, Supreme Court held that
application under s. 51 can be made before the trial commences or in the course of trial.
- In Siti Aisyah v PP [2019] 7 CLJ 27, here the Court of Appeal allowed application for
the recorded statement of 7 witnesses at the end of prosecution’s case.
- Given that s. 51 is a form of discretionary power of the Court, it has to observe two tests
before exercising such discretionary power.
o Test 1: Court has to consider whether the production of document is
necessary/desirable for the purposes of any trial/other proceeding under the CPC
or before Court.
o In PP v Teoh Choon Teck [1963] 1 MLJ 34 **, court explains that the intention
of s. 51 is clearly to say that in criminal cases, neither party can obtain evidence
from the opposite side by means of interlocutory or discovery of documents as in
the practice in civil procedure. Before the Court issues a summons, it is bound to
consider judicially whether the production of the documents are really necessary
or relevant for the purpose of the inquiry, trial or other proceedings. The object or
document sought for shown to have some relation or connection with the subject
 matter of the investigation or inquiry or supply some link in the chain of evidence.
It must be noted that anything which may reasonably be regarded as forming part
of the evidence in the case may be ordered to be produce. This is the main aim of
the provision. The question of whether the object or document is admissible or not
is not the issue here where so long as it is considered to be necessary or
desirable for the purpose of the inquiry, such power of Court comes in. Lastly the
object or document sought must be clearly specified otherwise the Court will not
enforce its discretionary power.
o In Haji Abdul Ghani bin Ishak v PP [1980] 2 MLJ 196, court referred to PP v
Teoh Choon Teck and held that s. 51 empowers the Court to order the production
of documents for the inspection of the opposite party if the court it considers such
production is necessary or relevant for the purposes of the trial. In this case, the
documents were seized in the course of the investigation of the case against the
applicant and it was submitted before Court that they are much relevant to the
applicant in preparing his defence. These documents too have been reduced into a
list. As such, the applicant’s right to inspection is limited to those within the list
per se.
o Test 2: Taking into consideration the justice of the case and the stage of
proceeding.
o In PP v Raymond Chia Kim Chwee [1985] 2 MLJ 436, Supreme Court explained
that the Court in exercising its discretion under s. 51 CPC, it has to consider the
justice of the case and at what stage of the proceeding the application is made.
o In Dato Seri Anwar Ibrahim v PP , court emphasized that different considerations
must be taken by the Court in deciding whether or not to make order for
productions of documents and materials. The first is of course the necessity or
desirability of the documents and materials. This must also be taken into
consideration hand in hand with the question of the stage of proceeding.
 Before trial
 In PP v Raymond Chia Kim Chwee [1985] 2 MLJ 436, court explained
that if it is to exercise its discretion under s. 51 before the commencement
of trial, it cannot presume on how prosecution will proceed. In another
saying, the court is not justified in this sense to direct prosecution to
deliver to the accused all documents taken from him as this is not
considered a proper exercise of court’s discretion under s. 51. At the very
first place itself, accused should know what documents had been taken
from him. Also, when there is an application to the court to exercise its
discretion under s. 51 before the commencement or trial, it must also
consider the provisions of ss. 152, 153 and 154 CPC in pertaining to
framing of charge. These provisions provide for a clear duty on the part of
prosecution to provide sufficient notice to the accused. As such, the
accused should have sufficient notice of what is alleged against him so as
to enable him to prepare his defence. So long as that requirement is
satisfied the law is satisfied.
 If s. 51 application is to be made before the commencement of
enquiry/trial, as a general rule the documents and materials must be those
specified or referred to in the charge.
 A general demand for unspecified materials and documents shall not be
entertained. (must specify which and what doc/thing, don’t ask generally
all investigation papers/docs)
 In PP v Teoh Choon Teck [1963] 1 MLJ 34***, it was held that the
question of whether the object or document is admissible or not is not the
issue here where so long as it is considered to be necessary or desirable for
the purpose of the inquiry, such power of Court comes in. Furthermore, the
object or document sought must be clearly specified otherwise the Court
will not enforce its discretionary power.
 In Datuk Tiah Thee Kian v PP [2002] 1 MLJ 585**, applicant herein
applied for all documents but at the same time he specifically listed out all
the documents he is to sought for. Given that these documents are deemed
to be the foundation to the prosecution’s charge, it will result in a serious
handicap on the applicant accused if he is to be denied inspection to these
documents.
 In PP v Lim Sooi Booi [2003] 2 MLJ 433 *, in this case, the applicant
apply to obtain for post mortem report. The court rejected the application
as it was found that the post mortem report was not a document that has
been referred to by the prosecution in the charge made against the
accused applicant.
 Application under s. 51 will also be rejected if it was found that accused
has intention to fish for information.
 In State of Orissa v Debendra Nath Padhi [2004] 4 LRI 860, the Supreme
Court of India reminded that the law does not permit a roving or fishing
inquiry.
 In Dato Sreesanthan a/l Eliathamby v PP [2020] 8 MLJ 624, court
emphasised that it is of a settled principle under the application under s. 51
CPC for discovery that at pre-trial stage, a roving and fishing inquiry for
evidence is strictly prohibited.
During trial
 In PP v Raymond Chia Kim Chwee [1985] 2 MLJ 436, it was held that
When the application under s. 51 CPC is made during trial, the rule of
relevancy must be strictly adhered to. Court cited Mallal's Criminal
Procedure which states that anything which may reasonably be regarded as
forming part of the evidence in the case may be ordered to be produced.
Hence, for application made in the course of trial, the materials or
documents sought must be relevant to the issues for adjudication.
 However, in Datuk Tiah Thee Kian v PP [2002] 1 MLJ 585, court
opined that the ruling in Raymond Chia is merely a general rule. There are
always exception to the general rule where the court must also consider
certain issues such as the complicated nature of the charges, the
complexity of the alleged transactions, the numerous documents involved
and the relevance of the documents to the charges as conceded by the
prosecution.
 Based on reported cases, it seems that counsel will use s.51 if the
documents sought to be produced are non-public documents.
 If public documents, they will be open for inspection e.g. FIR, medical
report
 S. 51 CPC herein is somehow not confined to non-public docs. What is
important is to satisfy the test of relevancy.
 If it involves public documents, reported cases showed that counsel will
apply s.76 Evidence Act (public doc) and s.44 Specific Relief Act (court to
order public servant to do certain act) to demand production of documents
from prosecution. (e.g. FIR, s.112 statement)
 In Haji Abdul Ghani bin Ishak v PP [1980] 2 MLJ 196, court explained
that if applicant seeks to sought for documents deemed public, he must
prove two things. First, the document he is seeking is a public document
under s. 74 EA 1950 and second, if it falls under the category of public
document that one has the right to inspect (common law tangible test).
 In Anthony Gomez v Ketua Polis Daerah Kuantan [1977] 2 MLJ 24,
accused applied to the KPD/OCPD for a copy of FIR made by complainant
but was turned down. He then applied to the High Court but was rejected.
He then appealed to Federal Court where it was held that FIR is a public
document as per s. 74 Evidence Act and despite s. 76 Evidence Act was
silent as to the right of applicant to inspect the FIR, he somehow has such
a right to supplied with the FIR for inspection under the Common Law
given that he has interest in it.
 In Khoo Siew Bee v Ketua Polis, Kuala Lumpur [1979] 2 MLJ 49 *,
court explained that a cautioned statement is considered as a public
document. The right to inspect a public document is corelated to the right
of an accused’s right of inspection. The accused has the right to inspect a
 cautioned statement because it was made by himself and not anyone else.
Hence there are no concerns on him tampering with witnesses giving
evidence or information against him. Nonetheless, as the statement was
signed by accused himself, it is rather impossible for him to deny what he
has said earlier.
 As in the case of Husdi v PP [1980] 2 MLJ 80 *, the issue before court
here was whether the defence has the right to be supplied with copies of
prosecution witness statement before the commencement of trial. Court
held it to be a no as there are risks of danger in accused tampering with
prosecution witness. However, there is an exception to this where if the
defence seeks to impeach the credit of a prosecution witness, then he can
be supplied with a copy of the witness's statement to the police.
B) Post amendment
- S. 8 CPC (Amendment) Act 2006 has introduced s. 51A CPC.
- S. 51A(1) CPC provides that before the commencement of trial, the prosecution shall
deliver to the accused the following documents:
(a) a copy of the information made under section 107 relating to the commission of the
offence to which the accused is charged, if any;
(b) a copy of any document which would be tendered as part of the evidence for the
prosecution; and
(c) a written statement of facts favourable to the defence of the accused signed under the
hand of the Public Prosecutor or any person conducting the prosecution.
- In PP v Mohd Fazil Awaluddin [2009] 7 MLJ 714, it was held that s. 51A is only
directory and not mandatory. As such if there is failure on prosecution part, it will not
render a trial null and void where it is curable under s. 422, unless it causes prejudice to
the accused.
(after this decision, there is amendment to s. 51A(3) CPC)
- In See Kek Chuan v PP [2013] 6 MLJ 885 *, court of appeal explained that the
prosecution’s case will be jeopardise if s. 51A is not followed. S. 422 will also not cure
the non-compliance if it is a material one, where it causes prejudice against the accused.
Nonetheless, failure to deliver the documents under s. 51A will also attract liability on
prosecution under s. 114(g) EA 1950.
- In Imran Khan Jan Gul Shah v Pendakwaraya [2016] MLJU 1425, court emphasised
that s. 51A is mandatory where if there was failure to provide the documents mentioned
 will render not admissible as evidence. (note this case was tried before amendment on s.
51A(3))
- In Dato Seri Anwar Ibrahim v PP [2010] 2 MLJ 312**, the court explained that the
wordings of s. 51A clearly provides that there shall be an automatic disclosure on the
part of prosecution. It has nothing to do with the court's discretion under s. 51. S. 51A is
different from s. 51 that was already in existence before the insertion of the former.
- S.51A(2) CPC provides that notwithstanding paragraph (c), the prosecution may not
supply any fact favourable to the accused if its supply would be contrary to public
interest.
- S. 51A(3) CPC provides that a document shall not be inadmissible in evidence merely
because of non-compliance with s.51A(1). **
- S.51A(4) CPC provides that Court may exclude any document delivered after the
commencement of the trial if it is shown that such delivery was done deliberately and in
bad faith.
- S.51A(5) CPC provides that when a document is delivered to accused after the
commencement of the trial, court must allow accused
(a) a reasonable time to examine the document; and
(b) to recall or re-summon and examine any witness in relation to the document
- In Dato Sri Mohd Najib bin Hj Abd Razak v Pendakwa Raya [2019] MLJU 190 *, court
explained that s. 51A is intended to promote fair trial by compelling the prosecution to
deliver to the accused all documents that the prosecution intend to tender as part of the
evidence for the prosecution before commencement of trial . Furthermore, the
prosecution shall also provide to the accused before trial a written statement of facts
favourable to the defence of the accused.
- In Benjamin William Hawkes v PP [2020] 5 MLJ 417 *, one of appellant’s contention
herein is that prosecution has breached s. 51A for not supplying the recording of CCTV
footage before commencement of trial in which the former’s right to fair trial herein has
been deprived. Court rejected such argument by the appellant as it was found that such
CCTV footage was never been tendered by prosecution as a part of its case as the
unclear footage was of no assistance to the prosecution in its case. Since the CCTV
footage was never intended to be part of the prosecution’s evidence, the prosecution is not
duty bound under s.51A(1)(b) to deliver the footage to the appellant before the
commencement of the trial.
Criminal Procedure II - Salient issues in summary trial

Compounding offences

- Compoundable offences mean for certain offences under the Penal Code, the victim and
the offender may settle out of court under an agreement.
- Compounding of an offence does not mean that no offence has been committed.
- It means that the victim is willing to accept compensation. If the agreement has been
breached, action lies in civil suit.
- For this section refer the table in CPC.
- S. 260(1) CPC provides that offences in Part A are those where the victims may
compound them if there is no prosecution pending for such offence.
- S. 260(2) CPC provides that offences in Part B are those where victims may compound
them only with the consent of the court before which the case is pending.
- S. 260(3) CPC provides that where any offence is compoundable, the abetment of that
offence or an attempt to commit that offence may be compounded in like manner.
- In PP v Norzian bin Bintat [1995] 3 SLR 462 , it was held that the court should not act
as a ‘rubberstamp’. The court in exercising its discretion whether to allow composition of
an offence, has to be exercised judicially after considering the following factors:
1. Nature of the offence
2. The circumstances under which it was alleged to have been committed.
3. The relationship between the parties.
4. The possibility of parties living in peace and harmony if offence compounded.
5. Stage at which composition was sought.
In cases where public interest was involved, it is proper for the Court to withhold its
permission. In the absence of aggravating factors, the court should lean in favour of
composition
- In PP v Azhar Che Will [2006] 3 CLJ 987, the court held that discretion under s. 260
CPC must be exercised judiciously in accordance to law and accepted principles and
 practice. It was further held that the compounding of any compoundable offence is
exercisable by the victim or any person competent to contract on his behalf. The court
herein allowed the application by the parents of the victim.
- In PP v v Zullaili Bin Matali [2014] MLJU 221*, court explained that the word
‘compound’ in s. 260 means to cease from pursuing the prosecution of the accused for
the wrong committed against the complainant. However, there is nothing in s. 260
suggesting that monetary compensation should be paid to complete the act of
compounding an offence. Thus, even an apology or handshake would be sufficient

Plead guilty by letter (PGL)

- Commonly referred to as a provision which allows for an accused to plead guilty by letter
(PGL).
- S. 137(1) CPC provides that when a Magistrate issues a summon, he has the discretion to
dispense such summon subject to such conditions as he may deem fit to impose, with the
personal attendance of the accused and or appear by his representative counsel by
indorsement thereon or footnote thereto.
- The provision allows a Magistrate to dispense with the attendance of the accused and be
represented by his advocate.
- If the magistrate allows the dispensation of attendance of the accused in court, an
endorsement to that effect must be made in the summons issued to him subject to
conditions that he may impose in cases relating to an offence
- S. 137(2) CPC provides that in cases of an of an offence punishable by fine only or by
imprisonment only for a term not exceeding three months or by both fine and
imprisonment and in which a Magistrate has issued a summons, an accused person
intended to plead guilty and be convicted and sentenced in his absence may appear by his
counsel or by letter addressed to the Magistrate to plead guilty and submit to pay any fine
which may be imposed in respect of that offence. The Magistrate as such may record a
plea of guilty and convict him followed by sentencing him according to law.
- It must be noted that PGL only apply to a summons case. *
- Accused may PGL to an offence punishable with fine only or imprisonment not more
than 3 months or both, provided that the accused instructs his counsel to appear or he
writes a letter to the magistrate pleading guilty and submits to pay the fine.
- In PP v Azmy Arif [1974] 1 MLJ 108, court emphasised that PGL will only apply to all
offences which satisfy s. 137(2).
- S. 137(3) CPC provides that any fine imposed is to be paid by the accused within
seven(7) days from the day where the Magistrate s letter was delivered at that address in
the ordinary course of post.
- S. 137(4) CPC provides that a Magistrate inquiring or trying the case may direct for the
personal attendance of the accused at any stage of proceedings if he thinks necessary in
doing do.
- S. 137(5) CPC ** provides that a Magistrate cannot impose imprisonment without fine in
the absence of the accused because if the accused is to be sentence to imprisonment, it
will take effect immediately.
- S. 137(6) CPC provides that the accused may withdraw his plea of guilty at any time and
to claim for trial provides that there are valid reasons for him to do so.

Right to be represented

- S. 255 CPC provides that subject to any express provision of law to the contrary, every
person accused before any criminal Court may of right be defended by a representative
counsel.
- Right to be defended by an advocate or right to counsel corresponds with the
constitutional guarantee under Art. 5(3) FC.
- Art. 5(3) Federal Constitution provides that a person arrested shall be informed on the
grounds as soon as necessary and shall the right to legal representation.
- Counsel must not only be willing to represent accused but must also be able to do so.
- In Sim Kee Guan v PP [1988] 2 MLJ 302, court explained that in this case, if the counsel
representing accused was under preventive detention, hence he is considered not able to
represent accused although he was more than willing to do so.

Court’s duty to explain his right to testify when accused is undefended

- S. 257(1) of CPC provides that if an accused is unrepresented by counsel, the court has a
duty to inform him of his right to give evidence on his behalf. But if he chooses to give
evidence on his own, the court will call to his attention on the principal points in the
evidence for the prosecution which are against him so that he has opportunity to explain.
- This provision has to be read together with s. 173 (ha) CPC (see above).
- In Shaari v PP (1963) MLJ 22, it was held that non-compliance to s. 257 does not
automatically vitiate a criminal trial. Although the trial magistrate failed to explain the
main points of evidence, appellant was able in his defence to give an intelligent reply.
 Therefore, accused had not been prejudiced in his defence and that the failure of
compliance had not occasioned prejudice but was merely an omission curable under s.
422 CPC.
- In Por Choo Aik v PP [1993] 2 MLJ 131 *, court held that s. 257 will only have to be
followed when after the magistrate has made decision to call accused in his defence. In
present case, although the magistrate failed to comply, it does not necessarily affect the
hearing if it is clearly shown that failure does not adversely affected the accused. It can be
seen that the accused was not adversely affected because he seemed to understand the
proceedings and the evidence submitted by the prosecution against him.

Procedure where accused does not understand proceedings

- S. 258 CPC provides that if the accused does not understand proceedings, court may
proceed with trial although he is not of an insane person.
(this is a very rare case that unlikely will happen)

Adjournment and/or Postponement

- S. 259(1) CPC provides that in case of the absence of witness or when there is any
reasonable cause as the court thinks fit, it may grant order for postponement or
adjournment of a trial in writing and remand the accused if he is in custody.
- S. 259(2) CPC provides that every order made under this section by the Court of a
Magistrate shall be in writing, signed by the presiding Magistrate, and shall state the
reasons for it.
- In Tan Foo Su v PP [1967] 2 MLJ 19, court held that s. 259(1) CPC confers a magistrate
an unfettered discretion to postpone or adjourn a criminal trial where a witness is absent
or for any other reasonable cause.
- In PP v Tanggah [1972] 1 MLJ 207, court stated that a magistrate has an unfettered
discretion to grant an adjournment where it shall not be disturbed by any other authority
irregardless of how high the authority is
- In PP v Karumah [1980] 2 MLJ 102, it was held that if the court were to easily acquit
the accused merely on the reason that there was absence of witness, it lead to attempt by
criminals in tampering the witness to weaken the prosecution’s case and if this happens,
administration of justice will be a mockery.
- Issue that often arise herein will be what amounts to ‘reasonable cause’.
- In Tan Foo Su v PP [1967] 2 MLJ 19, Raja Azlan Shah J opined that the term
‘reasonable cause’ is a term of art for the counsels where there is no fixed definition to it.
The reasonable cause for each case differs from one another.
- In PP v Low Yong Ping [1961] MLJ 306, held that the absence of prosecution witness
on the reason that he had gone to the High Court as witness is nowhere a frivolous ground
and is no doubt a reasonable ground to apply for adjournment.

Holding view by court

*Read yourself 😊 (skipped)

Part heard cases

*Read on your own 😊 (skipped)

Evidence to be taken in the presence of accused

- s. 264 CPC provides that all evidence taken under Chapters XIX and XX shall be taken
in the presence of the accused or when his personal attendance is dispensed with in the
presence of his counsel, except otherwise provided.
- An instance is when an accused PGL pursuant to s. 137 CPC.

Mode of taking and recording evidence

*Read yourself 😊 (skipped)

Alteration or Amendment of Judgment

- S. 278 CPC provides that only the High Court has the power alter or review a judgment
once pronounced. However a clerical error or technical error or an accidental
slip/omission
may be rectified at any time even by a subordinate court. Any other mistakes may be
rectified by the court pronouncing the judgment at any time before the court rises for the
day.
- Other mistakes herein may include a mix up of accused persons and their respective
offences and the court’s findings on it.
- In PP v Heng You Nang (1949) MLJ 285, it was held that once a judgment in a criminal
trial has been pronounced and signed by the presiding judge, it cannot be altered and the
court ceases to have power in varying its decision.
- In Re Datuk Harun Haji Idris [1981] 1 MLJ 47, court explained that a superior court,
being a court of record has an inherent jurisdiction to remedy mistakes in its record. Such
powers include going beyond rectifying clerical errors and other mistakes.
- In Datuk Harun Haji Idris v Officer in Charge, Pudu Prison [1981] 2 MLJ 72, it was
explained that the High Court in exercising its inherent powers under s. 278 must do so in
a fair, cautious and only in rare situation only when the court considers that the ends of
justice require it.

Disposal of exhibits

- During the trial, certain exhibits or properties may be tendered by the prosecution or the
defence. Then at the end of the trial, the court has to make an order as to whether these
properties should be returned to the respective owners or be forfeited.
- The provisions of the law in respect of disposal of exhibits at the conclusion of
any proceeding are to be found mainly in ss. 406A to 408 CPC.
- The most important factor to consider is that if any exhibits have been tendered
during a criminal proceeding the prosecution must ensure that the court makes an order as
to their disposal at the conclusion of the proceedings.
- Usually the court will order that the exhibits be handed over to the police or other law
enforcement agency for disposal.
- After the conclusion of the inquiry or trial, the court may make an order for the disposal
by destruction, forfeiture or confiscation or delivery to any person of any property or
document produced before it or in its custody or regarding which any offence appears to
have been committed or which has been used for the commission of any offence.
- S. 406A(1) CPC provides that Court shall consider in what manner the exhibits shall be
disposed of and may make any order for that purpose in accordance with law at the
conclusion of any proceedings.
- S. 406A(2) CPC provides that if the Court does not make any order as to the disposal of
exhibits, they shall be handed over to the police in charge of the proceedings to be dealt
with in accordance to the provisions of this Chapter as if the Court had made an order or
orders to such effect. This is save in accordance that if the police are at any time in doubt
as to the proper manner of disposing of any exhibit or if any person claims delivery to
 him of any exhibit and the police refuse such delivery, the police or such person may
apply summarily to the Court which determined the case and the Court shall make such
order regarding the disposal of the exhibit as it deems proper.
- S. 407(1) CPC provides that any Court may impound any property or document produced
before it under this Code as it thinks fit to do so.
- Sometimes there may be more than one claimant to the exhibits and it is best in such
cases for the prosecution to apply to the court to arrange for a separate inquiry into their
disposal.
- This inquiry may be held immediately after the conclusion of the case or on any other
date suitable to the court.

Seizure of property by police

- S. 413(1) CPC provides that any seizure or findings of property by a police officer is to
be reported to a Magistrate who later orders for its delivery to the person entitled to
possession or if that person cannot be ascertained it has to be preserved taking into
consideration its safe custody and production when required.
- S. 413(2) CPC provides that if the person entitled is known, magistrate may order the
property to be delivered to him on such conditions (pursuant to a bond to be executed) as
the magistrate thinks fit.
- S. 413(3) CPC provides that if the person entitled is not known, the magistrate shall
detains it and issues a proclamation specifying the articles and requiring any person
having a claim to it to appear before him and establish his claim within six (6) months.
- The new amended s. 413(5) CPC provides that any property seized shall be detained if
the property is still required for investigation purposes and the property shall be kept in a
safe and proper place by the Officer in charge of a Police District (OCPD) where the
offence was committed.

The new S. 407A CPC

- S. 407A(1) CPC provides that 407A the Public Prosecutor may apply to the Court for the
disposal of any articles specified in (2) at any time
- S. 407A(2) CPC provides for the following seized articles may be disposed of under this
section includes:
(a) dangerous drugs seized under the Dangerous Drugs Act 1952 [ Act 234]
 (b) clandestine drug laboratories or premises;
(c) valuable goods;
(d) cash money;
(e) noxious, deleterious, corrosive, explosive, dangerous, toxic, flammable,
oxisidising, irritant, harmful, poisonous, psychotropic and decay substances;
(f) video compact discs, optic discs, films and other similar devices;
(g) publication, books and other documents;
(h) vehicles, ships and other forms of conveyance;
(i) equipment and machineries;
(j) timber and timber products;
(k) rice, food and other perishable items; and
(l) other articles as may be determined by the Public Prosecutor that may be
vulnerable to theft, substitution, constraints of proper storage space, high
maintenance costs or any other considerations as the Public Prosecutor deems
relevant
- The procedures are mandatory to be complied with so as to ascertain that the chain of
evidence is maintained.
- With this provision, the police will be able to reduce the risks faced by them and the
public by the keeping of highly hazardous and dangerous seized articles at their storage
premises.
- Other than that, early disposal of the seized articles would also reduce the high cost
incurred in maintaining and storing the seized article and overcome the problems of
limited storage space.

s. 399 CPC

- S. 399 (1) CPC provides that report by person mentioned in (2) or any document
purporting to be a report under the hand of the Registrar of Criminals upon any matter or
thing relating to finger impressions submitted to him for report may be given in evidence
in any inquiry, trial or other proceeding under this Code, unless that person or Registrar
shall be required to attend as a witness:-
(a) by the Court; or
(b) by the accused, in which case the accused shall give notice to the Public
Prosecutor not less than three clear days before the commencement of the trial
Save in accordance that in any case in which the Public Prosecutor intends to give in
evidence any such report he shall deliver a copy of it to the accused not less than ten clear
days before the commencement of the trial.

- This section provides for rules against hearsay evidence.

- This is because an expert report prepared by an expert is admissible as substantive
evidence against the accused without having to call the expert who is the maker of the
report to testify in court.
- But before the expert report serves to be substantive evidence against the accused, there
are certain condition precedents which have to be fulfilled.
I. If the prosecution wishes to have the report tendered in court as substantive
evidence without having to call the expert himself to testify, it has to serve the
expert report 10 days before the commencement of the trial against the accused.
II. If the court orders for the said expert to be present in court to testify, the
prosecution shall comply.
III. If the accused wishes to have the expert present in court for the purpose of cross-
examination, he shall give 3 days’ notice to the prosecution before the
commencement of the trial against him. Once such notice is given to the
prosecution, it shall comply.
- In PP v David Chung [2007] MLJU 493, court explained that there is a difference
between failure to serve the expert report and the failure by the accused to accept service
of the report. What matters is the failure to serve the expert report on the accused as it is a
condition precedent and non-compliance will render the report inadmissible.
- In PP v Lin Lian Chen [1991] 1 MLJ 316 *, it was held that once the expert report is
served on the accused, it becomes a substantive evidence against him. Even if the
chemist (an expert pursuant to s. 399(2)(c)CPC) is called to testify, he is not allowed give
any other evidence in proof of the matter, except the report itself.
- In Muhammad bin Hassan v PP [1998] 2 MLJ 273 *, it was held that once the expert
report is served, the expert who prepared the report may still be called as a witness to
testify in court. If he is called to testify, the report prepared by him can only be used to
corroborate his oral evidence in court or to refresh his memory when testifying in the
witness box.
- In Shahrizal bin Abdul Ghani v PP [2014] 1 MLJ 769, court held that the notification of
declaration which in effect, the effective recognition that science officers employed by
 the chemistry department is a class of persons to whom the provisions of s. 399 CPC
herein shall apply and whose report may be given in evidence, without the makers being
compelled to attend as witnesses.

Autrefois convict and Autrefois acquit

- Autrefois convict and Autrefois acquit is a basic principle of natural justice. It means that
“a person convicted or acquitted shall not be tried again for the same offence”.
- In other words, the accused person, who has been tried for an offence and convicted or
acquitted by a court of competent jurisdiction shall not be tried again for the same
offence.
- This principle is recognised as a fundamental right, known as “Double Jeopardy”.
- Art. 7(2) Federal Constitution provides that a person who has been acquitted or
convicted of an offence shall not be tried again for the same offence, except where the
conviction or acquittal has been quashed and an order for retrial is by a court superior to
that by which he was acquitted or convicted.
- S. 302(1) CPC provides that a person who has been previously tried before court for an
offence or acquitted of that offence shall, while the conviction or acquittal remains in
force, not be liable to be tried again for the same offence nor on the same facts for any
other offence where a different charge from the one made against him.
- S. 302(2) CPC provides that a person acquitted or convicted of any offence may later be
tried for any distinct offence for which a separate charge might have been made against
him on the former trial under s. 165(1).
- In R v Miles 59 LJMC 56, court explained that the plea of auterofois convict would mean
that once a person has been convicted of an offence by a court of competent jurisdiction,
such conviction is a bar to all further criminal proceedings for the same offence.
- In PP v Kader Khan (1884) 2 Ky Cr 113, court explained that the plea of auterofois
acquit is founded on the principle that one shall not be brought into danger of his life for
one and the same offence for more than once.
- In PP v Teh Cheng Poh [1979] 1 MLJ 50 **, it was emphasised that before the plea of
autrefois convict or acquit can be raised, it must be shown that the accused must have
been convicted or acquitted.
- In Jamali bin Adnan v PP [1986] 1 MLJ 162, court held that the plea of autrefois acquit
should be raised and determined before the commencement of the trial. However in
 special circumstances and in the interest of justice, the plea may be raised in the appeal.
The burden rests on the accused to prove an autrefois acquit or convict.
- In Zakaria Abdul Rahman v Ketua Polis Negara [2001] 3 MLJ 385. It was held that the
common law doctrine of autrefois convict and acquit is similarly applicable to
disciplinary proceedings under a statutory code by which a profession is governed, which
is applicable to the present case as the applicant being a police.
- It is to be noted that there are circumstances where plea of autrefois is not available.
- In PP v Lee Siew Ngock [1966] 1 MLJ 225 *, court held that autrefois convict cannot be
pleaded if the offences occurred on different dates. (consider different facts, different
incident)
- In Sau Soo Kim v PP [1975] 2 MLJ 134 *, Federal Court held that plea of autrefois
convict is not available where the subsequent charge is for a different charge even
though based on the same fact, or that the offence occurred on different dates, or even
when the first trial has been declared a nullity.
- In Nadarajan v Timbalan Menteri Hal Ehwal Dalam Negeri, Malaysia [1994] *, court
explained that plea of autrefois convict is not available in this case because here the
subsequent charge is for a different offence although based on the same facts.