WHETHER SUMMON CASE OR WARRANT CASE?

KARPAL SINGH v PUBLIC PROSECUTOR [1986] 2 MLJ 319

The applicant was alleged to have committed an offence under section 27(5)(a) of the Police Act
1967 on August 30, 1984, by being a member of an illegal assembly in Kampar, Perak. The
police applied for and obtained a warrant of arrest issued by the Kampar Magistrate's Court on
October 1, 1985. The applicant was arrested and released on police bail. He applied for an order to set
aside the warrant.

Held:

 (1)as this is a summons case, a summons not a warrant should be in the first instance;
 (2)there is no indication that the applicant had absconded or that he would not obey a
summons. Nor were there any reasons given by the learned Magistrate in issuing the warrant.
In the event, the issue of a warrant was wrong in law and therefore illegal;
 (3)it has to be borne in mind that it is the cardinal principle of law that in criminal cases the
provisions of the law must be strictly followed. In the present case, ordinarily a Magistrate
may only issue a summons. He cannot issue a warrant unless there is good reason for him to
do so. In the absence of any good reason, the issue of a warrant would be wrong and illegal.
The applicant was therefore illegally arrested;
 (4)the warrant was accordingly set aside.

Section 2 of the Criminal Procedure Code provides for the definition of a summons or
warrant case. A 'Summons case means a case relating to an offence and not being a warrant
case' and a 'Warrant case means a case relating to an offence punishable with death or with
imprisonment for a term exceeding six months.'

The offence in this case being punishable by section 27(8) of the Police Act 1967 carries the
penalty of a fine not exceeding $500/- or an imprisonment term not exceeding six months or both
(emphasis is mine). It is clear that this is a summons case and not a warrant case and
therefore a summons should in the first instance issue and not a warrant.

The only provision which gives the Court power to issue a warrant instead of a summons is Section
47 of the Criminal Procedure Code. Paragraph (a) is relevant to the present case where instead of
a summons the Court issues a warrant. However, before the Court exercises this power, it should
satisfy itself that there are reasons to believe that the defendant has absconded or that the
defendant will not obey the said summons.

WHETHER MAGISTRATE HAVE POWER TO TRY OFFFENCES WHICH ALSO

PROVIDE SENTENCE WHIPPING (SINCE DALAM STATUTE ONLY CONFINE
TO OFFENCE PUNISHABLE WITH IMPRISONMENT & FINE)?

LEE HENG KOOI v PUBLIC PROSECUTOR [1993] 1 MLJ 69

The applicant was tried in the magistrates' court for an offence under s 397 of the Penal Code
(FMS Cap 45) which provides for whipping. A preliminary issue was raised and dismissed that s 85
of the Subordinate Courts Act 1948 ('the Act') did not confer upon the first class magistrates'
court jurisdiction to try offences which also provide for a sentence of whipping. The matter was
referred to the High Court for review. Counsel for the applicant contended that the opening phrase –
'subject to limitations contained in this Act' – in s 85 of the Act, meant that whipping must first be
provided for in s 85 before the limitation of 12 strokes in s 87 of the Act could arise. Counsel further
contended that s 87 purports to illegally extend the punishment of whipping to a magistrates' court
when there was no provision for such in s 85. It was also contended by counsel that s 40(1) of the
Interpretation Act 1967 ought not to be invoked to interpret important issues such as jurisdiction, but
only in respect to procedural or administrative matters.

Held, dismissing the application:

(1) Under the accepted canons of construction of statutes, it is impermissible to employ one limb of a
particular provision in a statute to impugn another limb of the same provision. In such cases, other
provisions in the same or other Acts could and ought to be invoked to assist in the interpretation of the
nebulous provision.

(2) Section 87 of the Act should be read in conjunction with the opening phrase in s 85 which the
legislature had obviously intended to mean 'subject to the sentence competence of the first class
magistrate to pass any sentence, inter alia, of whipping of up to 12 strokes, a first class magistrate
shall have jurisdiction to try …'.

(3) Section 40(1) of the Interpretation Act 1967 applies in the interpretation of s 85 of the Act. The
clear wording of s 40(1) is wide enough to bring within its ambit all laws including laws governing
jurisdiction and its applicability is not confined to procedural or administrative matters. By virtue of s
40, s 87 clearly confers power to a first class magistrate to impose, inter alia, sentence of
whipping of up to 12 strokes and therefore, jurisdiction to try offences which allow for whipping
must obviously be implied to enable the magistrate to enforce the Act.

WHERE MEGISTRATE CAN EXCEED HIS POWER OF SENTENCING

ABDUL WAHAB v PUBLIC PROSECUTOR [1970] 2 MLJ 203
The appellant had been convicted under section 457 of the Penal Code for having committed house-
breaking in order to commit theft. He had twelve previous convictions. The learned magistrate
sentenced him to 2 years' imprisonment and six strokes of the rattan to be followed by twelve months
of police supervision.
Held:
(1)the learned magistrate should have acted under section 87(2) of the Courts Ordinance which gives
power to a first class magistrate to award the full punishment authorized by law for the offence of
which a person has been convicted;
(2)in this case the term of imprisonment should be increased to 10 years.
The appellant has given me no satisfactory explanation or put forward any reasonable plea why the
sentence of imprisonment should not be enhanced in this case. I am of the view, looking at the
previous history of the appellant and his whole criminal record right from his childhood days, that he
has proved himself incorrigible.
A great part of his adulthood has been spent in prison and it may perhaps do the society some good if
he is kept away from the public. I therefore set aside the order of the learned magistrate and substitute
therefor a sentence of 10 years' imprisonment and six strokes of the rattan followed by 12 months'
police supervision.
WHEN MAGISTRATE CAN EXCEED POWER OF SENTENCING (WRITTEN LAW
PROVIDE SUCH AUTHORITY)

PUBLIC PROSECUTOR v YAP SIN PENG [1986] 2 MLJ 66

In this case the respondent had pleaded guilty to the offence of acting as a bookmaker under
section 6(3) (a) of the Betting Ordinance, 1953. He was sentenced to a fine of $2,000. The
Public Prosecutor appealed against the inadequacy of the sentence. According to the expert
the total number of bets accepted and placed on horse racing according to the records was
$20,808.
Held: it is in the interest of the public that the unrealistic kind of sentence which was imposed
in this case should not be upheld. The sentence should be enhanced by adding a prison
term of 18 months and increasing the fine to $20,000 in default six months'
imprisonment.

DUTY TO RECORD REASONING FOR FULL SENTENCE UNDER S.87(2)

PUBLIC PROSECUTOR v ABDULLAH BIN PANDAK HASSAN & ANOR [1975] 2 MLJ 276
The defendant and another had during a period of 12 days committed a number of thefts and one
house-breaking in the areas of Titi Gantong, Kampong Sadang and Kampong Talang in the vicinity of
Parit in the same District of Kuala Kangsar in the course of which various articles ranging from a
parang, shoes, clothing and motor-cycle were stolen either by the said defendant himself or jointly
with another.
The learned magistrate dealt with all five charges against the defendant on the same day and imposed
the following sentences in respect of each of the offences committed by the defendant:

(a)2 years' imprisonment and a fine of $100 in default 20 days imprisonment for the first charge.
(b)2 years' imprisonment for the second charge.
(c)4 years' imprisonment, 3 strokes of the rotan and police supervision for one year in respect of the
third charge.
(d)one year's imprisonment in respect of the fourth charge.
The records of the learned magistrate were either confused or unclear and it did not appear clearly
which of the sentences were to run concurrently. The learned magistrate did not record his reasons for
imposing the full punishment for the offence nor did he transmit the records to the High Court as
required by section 37 of the Courts of Judicature Act, 1964 and section 87 of the Subordinate Courts
Act, 1948.
The learned Special President, Ipoh, has brought to the court's attention the sentences imposed on the
defendant in Parit Arrest Case No. 14 of 1975 with a view to revision.
Held:
(1)despite the fact that magistrates are generally over-burdened in their day-to-day administration of
justice, sufficient care must be given to the recording of particulars, facts, statements in mitigation by
accused persons, sentences and other orders as the magistrate may make and for this purpose time
expended would certainly be regarded as well spent;
(2)the format of the Charge Sheet in the form of "Courts 113" was specially designed to achieve the
purpose of clarity and magistrates should ensure that the columns at the back of the charge sheet are
properly filled to reflect the full records of the proceedings;
(3)additional continuation sheets should be incorporated into the charge sheet only where the notes of
evidence or brief facts and other particulars cannot be entered into the charge sheet by reason of
insufficient space;
(4)upon imposing the full punishment by virtue of subsection (2) of section 87 of the
Subordinate Courts Act 1948 (Revised 1972) it is mandatory for the magistrate to state his
reasons in writing. The said provision requires the magistrate, where no appeal has been lodged
against the sentence, to transmit the records of the proceedings to the High Court so that the
High Court may satisfy itself as to the correctness, legality or propriety or otherwise of the
sentence so imposed in exercise of the special powers;
(5)in the circumstances of this case the sentences imposed must be revised.

WHETHER TERRITORIAL JURISDICTION OF SESSIONS CT LIMITED BY LOCAL

AREAS BEING ASSIGNED?

Public Prosecutor v Segaran a/l S Mathavan [2009] 9 MLJ 597

The accused faced nine charges in the KL Sessions Court Arrest Case No 62–400 of 2008 for
offences under s 420 of the Penal Code and three charges in the PJ Sessions Court Arrest Case No
62–208 of 2008 for offences under s 4(1)(a) of the Anti-Money Laundering and Anti-Terrorism
Financing Act 2001. The learned deputy public prosecutor ('the DPP') applied for the transfer
of the Arrest Case No 62-208 of 2008 to the Kuala Lumpur Sessions Court ('KL Sessions Court'),
inter alia, on the grounds that: (i) the charges for Arrest Case No 62–208 of 2008 originated from
Arrest Case No 62–400 of 2008 where money recovered from Arrest Case No 62–400 of 2008 had
become the 'subject matter' in Arrest Case No 62–208 of 2008; (ii) there was a connection between
the two arrest cases and a transfer was necessary for the purpose of a joint trial for all the charges; (iii)
the offences were committed within the Klang Valley area and therefore, the accused's interest will
not be prejudiced if the case was heard in the KL Sessions Court; and (iv) the charges involved the
same witnesses and reference to the same documents and as such will save time and costs for all the
parties. The learned Petaling Jaya Sessions Court ('PJ Sessions Court') judge dismissed the
DPP's application and hence this application for revision. In view of the proviso to s 104 of the
Subordinate Courts Act 1948 ('the SCA'), the sessions court judge was of the opinion that she
could not transfer the PJ Sessions Court case to KL Sessions Court because the latter does not
have local jurisdiction over PJ Sessions Court cases. The sessions court judge was of the view that
the PJ Sessions Court and KL Sessions Court have been assigned different local jurisdictions by
High Court Practice Direction No 4 of 1993 read together with High Court Practice Direction No 2
of 1993. The sessions court judge also relied on s 59(2) of the SCA.

Held, ordering that the Arrest Case No 62-208 of 2008 be transferred to the KL Sessions Court:

(1)The PJ Sessions Court, under the Shah Alam Sessions Court, and the KL Sessions Court do
not have local limits of jurisdiction assigned to them by order made by the Yang di-Pertuan
Agong under s 59(1) of the SCA. Under s 59(2) of the SCA, if no local limits of jurisdiction have
been assigned to a sessions court, then the sessions court has jurisdiction to hear and determine
any cause or matter arising in any part of the local jurisdiction of the respective High Court ,
which means that the sessions court has the same local jurisdiction of a High Court. Therefore, the
sessions court can sit anywhere, at any branch in Peninsular Malaysia or West Malaysia. This means
that pursuant to s.104 of the SCA, and reading it together also with its proviso, the PJ Sessions
Court can determine whether to transfer the PJ Sessions Court case to the KL Sessions Court
since the KL Sessions Court does have jurisdiction to hear such case (see paras 17–19).

POWER OF SESSIONS CT TO PASS SENTENCE

Tuan Mat bin Tuan Lonik v Public Prosecutor [2009] 4 MLJ 81 (COA)
The appellant was the stepfather of the victim. The victim was 12 years old when the
appellant first raped her. The appellant further committed the offence on four other occasions.
The appellant's acts of raping the victim were exposed when the victim delivered a baby at a
hospital. The appellant subsequently, was charged in the sessions court for five offences of
rape punishable under s 376B of the Penal Code ('the Code') in three separate cases. All the
five charges were heard together. The appellant pleaded guilty to all the five charges, and
upon conviction was sentenced to 15 years imprisonment and 10 strokes of the rotan for each
offences. Each sentence was to run consecutively from the date of arrest. Subsequently, the
appellant appealed to the High Court, which was dismissed, with affirmation of the sentences
of the sessions court. The learned judge opined that despite the appellant's guilty plea, but due
to the nature of the offence, no amount of mitigating factors could override public interest.
The appellant hence, appealed against the sentences.

Held, allowing the appeal:

(1)Section 282(d) of the Criminal Procedure Code ('CPC') empowers the judge with the
necessary discretion when a sentence should begin. Further, a rule has also evolved whereby
when the offences piled against an accused person are distinct offences, let alone that they do
not emanate from the same transaction, the imprisonment sentences would invariably run
consecutively. The purpose the sentence of the second charge to run consecutively with the
first charge was to discourage the type of criminal conduct, reflect the overall seriousness of
the behaviour and the need to protect females. If the sentence of the second charge were not
ordered to run consecutively with the first charge, the appellant in no time would be back on
the street, not only free to terrorise his family members but also exact revenge on the wife
who lodged the police report against the appellant (see paras 22–23).
(2)On the facts, the sentences of the first and second charges were to run consecutively and
the sentences of the third, fourth and fifth charges were to run concurrently with the sentence
of the second charge. Thus, factually reducing the length of time of the appellant's
incarceration to 30 years, and with deductions for good behaviour, the appellant would be
about 70 years of age when he is released from incarceration. Even if the appellant lives at
the age of 70 years, the likelihood of him besetting and causing trauma to anyone was slim.
The orders not only had considered public interest but also made the sentence sensible and
fair (see paras 24–25).
(3)The learned High Court judge had erred in affiming the imposition of 50 strokes of
the rotan for the five charges handed down by the trial court as the combined sentences
of whipping had contravened s 288(5) of the CPC (see paras 26).
(4)A conviction of any two or more distinct offences, and any two or more of which are
legally punishable by whipping, the combined sentences of whipping shall not exceed a
total number of 24 strokes in the case of adults. The probability of the 24 strokes of
rotan being executed to completion against the appellant is next to impossible as the
appellant's age was 48 and the first charge would take 15 years to exhaust, the
maximum strokes that he will endure would only be four strokes. Hence, upon the
appellant attaining the age of 50 in two years, no sentence of whipping shall be executed
despite the imposition of 24 strokes of rotan against the appellant in adherence to s 289
of the CPC. Despite the futility of the imposition of the 24 strokes of rotan, and
regardless of it, the orders were primarily to ensure that the right message was
transmitted to younger offenders who may not be saved by age (see paras 27–28)