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-for finals-

SEARCH

- Yong Moi Sin v Kerajaan Malaysia - to help with investigation by gathering

evidence and ensure that the chain of evidence is not broken
- The power of search goes hand in hand with police investigation as there will be no
proper investigation without the power to search
- Ghani v Jones - police or anyone else is not allowed to ransack anyone’s house
simply to see if he may have committed some crime
- Search of premise
- With warrant:
- Sec 54 CPC - warrant issued if there is a reason to believe that if
summon or order is issued will not produce the docs or thing that is
not known to the court to be of whose possession or to serve justice
- Sec 56 - if there is a reason to believe
- Ahmad bin Ishak v PP - investigate the circumstances and
apply reasonable man test - if there is sufficient cause to belief
- Chong Chieng Jien - there is credible info (upon info) before
issuance of warrant
- Sec 58 - issue warrant if person is wrongfully confined
- Sec 57 - manner of search warrant
- Lam Chak v PP - if no days specified, must be reasonable
(non-compliance not fatal)
- Sec 55 - search warrant should specify to inspect that particular area
only
- Without warrant;
- For offences under Sec 62-63 (search and seizure by Chief PO)
- Sec 116 - when production is necessary for investigation (urgent)
- Sec 16 - Search of place for a person sought to be arrested
- Sec 62 - elements to fulfil: credible info / not below inspector / involves
stolen property / good grounds that goods would disappear
- Yong Moi Sin v Kerajaan Msia: stolen property is gold locket which
can be melted
- Search list
- Sec 64 - mandatory for search list to be made
- Sec 65 - presence of occupier in premise
- San Soo Ha v PP - failure to prepare search list is non-fatal to the
prosecution’s case
- Liaw Wee Seing v PP - search list is prepared but not tendered
during trial - not necessary but court will question integrity
- Alcontara - failure only fatal if prejudicial - adverse inference EA
- PP v Gurchan Singh - search list is important to determine credibility
of witness
- Effect of illegal search
- Kuruma v R / Saminathan v PP - admissibility of evidence will not be
tainted by the illegality of search. Court only concerned with the
relevancy of evidence
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BAIL

- Definition - Blackstone’s Commentaries Book IV - ‘bail’ is defined as a delivery or

bailment of a person to his sureties, upon their giving of sufficient security for his
appearance.
- Yusof Bin Mohamed v PP - Bail means security taken from a person to appear on a
fixed date before a court. Bail is to set free a person who is under arrest, detention or
is under some kind of restraint by taking security for his appearance.
- First Schedule CPC - A matter of bail is determined in the light of whether the
accused was charged with a bailable offence or a non-bailable offence.
- Sec 387 - bailable offences - bail can be given to release a person by;
- Police pending investigation
- Court pending trial
- Sec 388 - non-bailable - under 16, woman, sick, infirm, no reasonable ground for
crime but sufficient ground for inquiry - not punishable by death or life imprisonment
- Sec 29 - right to be released on bond or bail after 24 hours + not produced before
Magistrate + no remand application
Bailor
- 18 years or above - Preferably a Malaysian citizen
- Sec 390(1) - The court in granting bail will stipulate the amount of bail and the
number of sureties
- Datuk Haji Harun Haji Idris v PP - The bailor, who stands surety for the accused,
has a duty to ensure that the accused person attends court unless warrant of arrest
will be issued
Cancellation of bail on application by a surety to be released as bailor
- Sec 393 - Can apply to the court to be absolved from being a bailor and the Court will
ask the accused to appoint a different bailor & failure to do so will result in
detainment
- Valliammai v PP - An application made by a bailor to be discharged as surety should
be attended to promptly.
- Royaya Abdullah v PP - An application for a discharge may be made at any time for
whatever reason or for no reason at all other than the desire to be relieved from
further liability.

JURISDICTION

- Art 121 FC - the judicial power of the Federation shall be vested in 2 High Courts of
coordinate jurisdiction and status and in such inferior courts as may be provided by
Federal law.
- Each court has separate competence or jurisdiction to impose sentences.
Magistrate’s court:
1. First class;
- Sec 87(1) SCA - may only pass sentences of imprisonment not exceeding 5 years or
fine of RM10,000 or whipping up to 12 strokes, or a combination of any sentence.
- Exception: a First Class Magistrate may pass sentences in excess of its sentencing
competence under two provisions:
- Proviso to Sec 87(1) SCA - if any law in force gives it jurisdiction to do so.
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- Cheong Ah Cheow v PP - the judge sentenced the accused to 18 months’

imprisonment and a fine of RM20,000, which exceeded his sentencing
competence, but was within that prescribed in the Betting Ordinance.
- Sec 87(2) SCA - in consideration of the accused person’s previous
convictions or antecedents.
- Abdul Wahab v PP - the court enhanced the accused’s sentence from 2
years to 10 years’ imprisonment as the accused had a total of 12 previous
convictions.
2. Second class;
- Sec 89(1) SCA - may only pass sentences of imprisonment not exceeding six
months or fine not exceeding RM1000 or a combination of any sentence.
Sessions court
- Sec 64 SCA - May pass any sentence allowed by law except death penalty
High Court
- Sec 22(2) CJA - May pass any sentence fixed by law including the death penalty
- Modification of sentencing competence
- The penal section under which the court imposes sentence stipulates the type, the
maximum sentence and for some offences, a maximum penalty
- The court cannot impose a type of punishment which is not prescribed by the penal
section.
- PP v Roxas Tan Haji - Where the two accused persons were charged and punished
under Sec 135(1)(ii) of the Customs Act which did not provide for the punishment of
imprisonment, the trial court passed the sentence of six months’ imprisonment and
fined them with RM10,000 each. On appeal, the appellate judge held that where the
provision did not provide for the punishment of imprisonment, the trial court had
clearly exceeded its jurisdiction.
- Another constraint is that the punishment imposed, even if it is of the type permitted
under the penal section, it cannot fall outside the minimum and maximum limits
prescribed
- Abu Seman v PP - the offender was sentenced to 5 days imprisonment and RM100
fine who was charged under Sec 11(1) of the Elections Offences Act. Sec 11(1)
provides that the offender shall be liable to imprisonment for up to 12 months and to
a fine of not less than RM250 and not exceed RM 1,000. Therefore, the minimum
fine should be RM250, not that RM100
- A court is also subject to constraints of sex and age when considering sentences of
death and whipping.
- The death penalty cannot be imposed on:
- Sec 275 CPC - A woman with a child at the time of her conviction
- Sec 97 Child Act - offender at time of commission was a child
- Sec 289 CPC - the punishment of whipping cannot be imposed on:
- Women
- Men sentenced to death
- Men over the age of 50, except for those sentenced to whipping under
Section 376, 377C, 377CA, 377E of the Penal Code.
- Sec 288(1) CPC - The punishment of whipping shall not exceed 24 strokes for an
adult, or 10 strokes for a youthful offender.
- Plea of guilt:
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- Raja Izzuddin Shah v PP - no plea in mitigation should be thrown aside lightly but
must be examined and considered equally with the facts presented by the
prosecution. It is generally accepted that an accused person should be given credit
or discount for pleading guilty, and failure to do so gives rise to interference by a
superior court.
- Soosainathan v PP - The High Court stated that where the learned magistrate made
no reference whatsoever in his grounds of judgement to the guilty plea of the
accused, he had obviously not considered it in favour of the accused, thus resulting
in a misdirection

CHARGE

- Wharton’s Law Lexicon - charge is to prefer an accusation against one

- Nallillah v R - it is mandatory for charge to be read and explained in language
understood by accused
- Sec 152 - time and place / nature of offence / law against offence committed
- Sec 153 - particulars of time and place to give sufficient notice to accused
- Sec 154 - manner of committing offence must be stated if Sec 152 and 153 gives
insufficient notice
- Sec 155 - words used in charge to describe offence to have same meaning as in the
Act
- Sec 163 - every offender is to be tried separately (GR)
Exceptions;
- Sec 170 - Joinder of accused persons;
(1) when more persons than one are accused of the same offence or of
different offences committed in the same transaction
- Amrita Lal Hazra - proximity of time / place / continuity of action / community
of purpose
- Saw Chiang Guan v PP - Although they were found in the same premises,
there was no evidence to show that they were jointly concerned in the
commission of the crime. The joint trial of the three appellants was held illegal
- PP v Muhamad Nasir - The prosecution in a joint charge must establish the
guilt of each accused person as a separate exercise and each may be
convicted independently
(1) when one person is accused of committing an offence and another of
abetment or attempt to commit the same offence
- Teja Singh v PP - the appellants were convicted of abetment of bribery and
bribery respectively in a joint trial. It was held that a joint trial of the two
appellants was permissible
(2) persons accused of offences relating to property and persons accused of
receiving, retaining, assisting in the disposal or concealment of such property
- Joint charge invoking common intention
- Sec 34 Penal Code
- Evidence adduced by the prosecution may not be sufficient to establish the guilt of
each and every one of the accused or the prosecution is not sure and is unable to
prove which of several participants in the commission of the act
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- DPP v Merriman - joint charge is more than one person being charged and that
within certain rules of practice or convenience, it is permissible for the two to be
named in one charge
- Hashim v PP - there must be nexus between offence committed in same transaction
although separate charge sheet
- Shamsuddin bin Hassan v PP - Where the charge is premised on common
intention, the prosecution need only establish that one of the accused persons
committed the act and there is some evidence that the others participated in it in
furtherance of a common intention
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ARREST

- Not defined in CPC

- Black Law’s Dictionary: taking custody of a person for the purpose of detaining him to
answer a criminal charge
- Art 5(1) Fed Con: no person shall be deprived of personal liberty
- So arrest must be made in accordance with written law (CPC)
- Inwoods v Borsch: an arrested person must be informed that he is under arrest and
the grounds of his arrest
- Concepts of arrest:
- Actual arrest (arrest valid under CPC)
- PP v Tan Seow Chuan (showing of police badge amounts to an
arrest)
- Constructive arrest
- PP v Lim Kin Ann (constructive arrest when the accused states that
his briefcase belongs to him which contains cannabis)
- PP v Kang Ho Soh
- Does not matter if actual or constructive arrest. As long as there is
arrest, statutory caution is needed
- Arrestable offence
- Sec 2 CPC: seizable offence (without warrant) / non-seizable offence (with
warrant)
- Other offences: First Schedule, last part: must with warrant unless provided
otherwise in any written law
- Mode of arrest
- Sec 15 CPC: 3 modes:
- Actual touching
- Confining the body
- Submission to the custody
- Sec 15(2) CPC: use of necessary means may be used if the person resist
such arrest
- Persons who may arrest
- Police officer
- Arrest without warrant (seizable offence): Sec 23(1)(a) CPC
- Seizable offence AND
- Reasonable complaint (Tan Kay Teck v PP: based on the
circumstances and facts of the case to decide) OR
- Credible information (Hashim bin Saud: there is credible
information by the informant as he has previously proved to be
reliable and his info has led to arrests, prosecutions and
convictions) OR
- Reasonable suspicion (Mahmood v Gov of Msia: the
suspicion by the police when plaintiff ran away after seeing him
is reasonable)
- Penghulu (sec 25 CPC)
- Private person
- Magistrate (sec 30 CPC)
- Sec 31 CPC: arrest by magistrate
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- Rights of person arrested

- Art 5(3) Fed Con / Sec 28A CPC (without warrant): be informed on the
grounds of his arrest / defended and consult legal practitioner of his choice
- Christie v Leachinsky (it is a condition of lawful arrest to have the party
arrested aware on what charge and ground)
- As soon as may be
- No provision on time frame
- PP v Mah Chuen Lim (arrest must be within convenient speed - depends on
the circumstances of each case)
- Detention more than 24h
- Sec 28(1) CPC: without unnecessary delay take person arrested before
magistrate
- Sec 28(2) CPC: not detain without warrant more than is reasonable
- Gabriel v PP: notwithstanding that the arrest may be illegal, it does not
render illegal subsequent proceedings

REMAND

- A person detained in custody longer to enable investigation to be completed

- Maja anak Kus v PP: detention may be authorised even if it is a bailable offence
- Application for detention:
- Production of arrested person
- Production of ID (PP v Audrey Keong Mei Cheng)
- Furnish grounds of arrest
- Purpose of ID is to show (Dasthigeer Mohamed Ismail v Gov of Msia):
- First 24h is utilised
- Reasons for extension
- Why and how long should the arrested person be in custody
- Saul Hamid v PP: accused or his counsel has no rights to access ID
- Sec 117 CPC : magistrate shall grant the remand order of a person arrested and
detained in custody so that the police can complete their investigation
- Bal Krishna v Emperor: magistrate to evaluate necessity to grant remand order =
duration
- Sec 117(5) CPC: right to make representation
- Sec 117(7) CPC: magistrate shall record grounds of detention
- Sec 117(2) CPC: remand duration
- 1st application: within the first 24 hours after arrest
- 2nd application: before expiry of 1st application
- Grounds for detention:
- PP v Audrey Keong Mei Cheng: due to investigation cannot be completed
within 24h
- PP v Audrey Keong Mei Cheng: information is well-founded
- Hashim bin Saud: to enable police to complete investigation but must be
specific as stating it so would be insufficient to support ground of application
- Chain remand (Sec 117(4) CPC)
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SEARCH

- Yong Moi Sin v Malaysia: to help with investigation by gathering evidence and
ensure that the chain of evidence is not broken
- The power of search goes hand in hand with police investigation as there will be no
proper investigation without the power to search
- Failure to comply with Sec 51 CPC, court will proceed with search warrant
- Ghani v Jones: police or anyone else is not allowed to ransack anyone’s house
simply to see if he may have committed some crime
- Sec 54 CPC: warrant issued if there is a reason to believe that if summon or order is
issued will not produce the docs or thing that is not known to the court to be of whose
possession
- Sec 55 CPC: search on specified place
- Search of persons (without warrant)
- Sec 20: search on body for evidence
- Sec 22: search of persons by reason of incapacity unable to give account of
themselves
- Sec 17: search of things capable of being concealed via the person in that
premises
- Sec 20A: procedure (Fourth Schedule)
- Search of premise
- With warrant:
- Sec 54(1): where search warrant can be issued
- Sec 56: if there is a reason to believe
- Ahmad bin Ishak v PP: investigate the circumstances and
apply reasonable man test - if there is sufficient cause to belief
- Chong Chieng Jien: there is credible info (upon info) before
issuance of warrant
- Sec 58(1) & (2): issue warrant if person is confined
- Sec 57: manner of search
- Lam Chak v PP: if no days specified, must be reasonable
(non-compliance not fatal)
- Sec 55: search warrant should specify to inspect that particular area
only
- Without warrant;
- For offences under Sec 62-63 (search and seizure by Chief PO)
- Sec 116: when production is necessary for investigation (urgent)
- Elements to fulfil under Sec 62: credible info / not below inspector /
involves stolen property / good grounds that goods would disappear
- Yong Moi Sin v Kerajaan Msia: stolen property is gold locket which
can be melted
- Search list
- Sec 64 - mandatory for search list to be made
- Sec 65 - presence of occupier in premise
- San Soo Ha v PP - failure to prepare search list is non-fatal to the
prosecution’s case
- Liaw Wee Seing v PP - search list is prepared but not tendered
during trial - not necessary but court will question integrity
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- Alcontara: failure only fatal if prejudicial - adverse inference EA

- PP v Gurchan Singh: search list is important to determine credibility
of witness
- Effect of illegal search
- Kuruma v R - admissibility of evidence will not be tainted by the
illegality of search. Court only concerned with the relevancy of
evidence
- Seizure
- Sec 435 - power of police to seize property suspected of being stolen
- Re Kah Wai - even if items were not specified in search warrant,
seizure of those items do not negate the legality
- Sec 20 - police can search and seize
- Sec 21 - seize offensive weapons
- Sec 62A-63: other things can be seized
- Custody
- Items must be kept in custody to ensure there is no break in chain of
evidence
- Andy bin Baginda v PP - sufficient if witness give evidence showing
no break in chain of evidence
- Disposal of property

MODE OF COMMENCEMENT IF A CRIMINAL PROCEEDING

- Guideline in Column 4 First Sch - for offences punishable with imprisonment of

less than six months
- Sec 2(1) - case relating to an offence but not being a warrant case
- Sec 133(1)
- Sec 133(2)
- Sec 35 - how summon is served
- Michael Raymond Taylor v PP - a person who appears before a court in obedience
to a summons surrenders himself to the custody of the court
- Sec 34 - form of summons
- Second Schedule Form 1
- Sec 136(1) - issuance of summon on sufficient ground
- Sec 47 - warrant in lieu
- Sec 2 - definition of warrant
- Sec 38 - warrant definition
- Sec 38(2) - warrant in force until cancelled / executed
- Sec 41 - substance of warrant to be notified
- Sec 42 - without delay
- Sec 39
- Sec 43 - brought to nearest magistrate

COGNISANCE OF OFFENCES

- Sec 128 - taking cognisance of offence by magistrate

- Sec 129 - mandatory for the sanction of PP before a court can take cognisance of
the offence under this section
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- Sec 133-135 - if based on complaint, few factor is considered

- Sec 2 - complaint definition
- Sec 128(1)(a) - there must be complaint before magistrate can take cognisance
- Sec 133 - not applicable for police officer / public servant - only for private person
- Sec 133(1) - procedures
- Sec 134 - postpone issue and conduct inquiry if there is a reason to doubt
- Sec 135 - dismiss complaint if no sufficient ground
- Sec 136 - issue proceed if there is prima facie
- Sec 47 - issue warrant in lieu of summons if there is reason to believe offender will
not obey summons or he fails to appear with no reasonable excuse

CHARGE

- Wharton’s Law Lexicon - charge is to prefer an accusation against one

- Nallillah v R - it is mandatory for charge to be read and explained in language
understood by accused
- Sec 152 - form of charge
- Sec 153 - time and place / nature of offence / law against offence committed
- PP v DSAI - a charge does not specifying date is not necessarily defective
- Sec 154 - manner of committing offence must be stated if Sec 152 and 153 gives
insufficient notice
- Sathaiah v R - offences such as cheating must have particulars of the act complaint
of as constituting the charge to give sufficient notice
- Sec 155 - words used in charge to describe offence to have same meaning as in the
Act
- Sec 156 - effect of errors - in error in quoting law of the offence charge, it is curable
as long as it does not cause miscarriage of justice
- But quoting wrong punishable section would render charge defective
- Rule against duplicity
- Sec 163 - separate charges for distinct offences - tried separately except…
- R v Sakandar Khan - prevent unfairness and embarrassment by confusion of
issues and intro of evid to show that he is guilty of some other offence
- Lee Teck Hock v PP - charge is bad when there is duplicity
- Sam Ke Ting v PP - charge is defective because of duplicity
- Exceptions - Sec 153(2)
- Curability
- Sec 422 - irregularity would be incurable if it has occasioned a failure
of justice
- See Yew Poo v PP - if the offences put together can be tried together
/ there will be failure of justice due to irregularity
- Joinder of charges: Sec 164-166
- Joinder of accused persons - sec 170
- Exceptions:
- Section 164 (PP v Lim Swee Chan - may be charged in one trial of
not more than three offences)
- Section 165(1) (Amrita Lal Hazra - proximity of time / place /
continuity of action / community of purpose)
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- Sec 165(2) - offence falling under separate definition (PP v Ridzuan

Kok)
- Sec 165(3) - acts constitute another offence
- Section 166 - R v Tay Thye Joo - alternative frame when doubt of
charge as it cannot be ascertained
- Sec 170
- Joint charge invoking common intention
- DPP v Merriman - joint charge is more than one person being
charged and that within certain rules of practice or
convenience, it is permissible for the two to be named in one
charge
- Hashim v PP - there must be nexus between offence
committed in same transaction although separate charge sheet
used
- Amendment of charge
- Sec 173(b), (h) and Sec 158
- Curing omissions and defects
- Sec 156 - error omission in stating offence not regarded material
unless cause miscarriage of justice
- Sec 421 - no frame charged
- Sec 422 - error, omission, irregularity in charge

JURISDICTION

- Art 121 FC - the judicial power of the Federation shall be vested in 2 High Courts of
coordinate jurisdiction and status and in such inferior courts as may be provided by
Federal law.
- The courts may be distinguished as follows;
- Appeal Courts: Federal Court, COA and High Court
- Trial Courts: High Court, Sessions Court, First Class Magistrate’s Court and
Second Class Magistrate’s Court
- Court for Children;
- Child Act 2001 provides for the arrest, detention and trial of children under the age of
18 years
- Sec 11 Child Act 2001
- Sec 11(5) - It has jurisdiction to try all offences except offences punishable with death
- Sec 83(2) - The Court For Children shall continue to hear the charge against a child
notwithstanding the child has attained the age of 18 years during the pendency of the
case
- A court other than a Court For Children shall hear the case where:
- Sec 83(3) - an offence is committed by a child but the charge is made after he has
attained 18 years of age
- Sec 83(4) - a child is charged jointly with a person who has attained the age of 18
years
- Sec 82 PC - ‘Child’ means a person who is under 18 years of age and in relation to
criminal responsibility is above 10 years and below the age of 18 years
___________________________________NURUL AIN AFIQAH 2023____________________________________
APPELLATE JURISDICTION
MAGISTRATES -NONE-
COURT
SESSIONS -NONE-
COURT
HIGH COURT - Hearing appeals from
subordinate courts
- Sec 304 CPC - there shall be
no appeal from a judgement,
sentence or order of a
magistrate in the case of any
offence punishable with fine
not exceed RM 25
- Sec 305 CPC - on a plea of
guilty and conviction by a
magistrate, it restricts appeal
to only the extent and legality
of the sentence
- Sec 306 CPC - in an appeal
against an acquittal by a
ORIGINAL JURISDICTION
First Class;
- Sec 85 SCA - to try offences
punishable with imprisonment
of not more than 10 years or
with fine, as well as offences
under Sec 392 (robbery) and
457 (lurking house-trespass
or house-breaking)
- It is subject to the overriding
jurisdiction of the Sessions
Court
- Nadarajah v PP - When a
case falling within the
magistrate’s jurisdiction is
filed in the Sessions Court,
the court cannot decline to
exercise its jurisdiction.
- This may occur where the
prosecution seeks a sentence
that is beyond the jurisdiction
of the magistrate in a
particular case.
Second class;
- Sec 88 SCA - To try offences
punishable with imprisonment
that does not exceed 12
months or fine
- It has co-extensive power with
1st Class Magistrate Court
Sec 63 SCA - to try all offences
except those punishable with
death.
- A trial would be a nullity if a
court tries an offence that is
not within its jurisdiction
- PP v Ismail Baki - the
accused was charged for an
offence under sec 458 PC. It
was held that as the offence
carried a maximum
punishment of imprisonment
of up to 14 years, a First
Class Magistrate had no
jurisdiction to try this case
which should be tried by
Sessions Court and the trial
was held a nullity.
___________________________________NURUL AIN AFIQAH 2023____________________________________

magistrate, the appeal shall - Sec 22(1) CJA - To try all

only be by or with the sanction
in writing of the PP
offences
- But normally it will try offences
that are punishable with death
- The circumstances when a
High Court may try an offence
other than that are when
cases are transferred to the
High Court under Sec 417
and 418A CPC

COURT OF - It shall have jurisdiction to -NONE-

APPEAL hear and determine any
appeal against any decision of
the High Court
1. Appellate or reversionary
jurisdiction in respect of
Session Court or matter
originating from
Magistrates’ Court on a
question of law
2. Original jurisdiction

FEDERAL - Have jurisdiction to hear and -NONE-

COURT determine any appeal from
any decision of COA in its
appellate jurisdiction in
respect of any criminal matter
decided by High Court in its
original jurisdiction

SENTENCING JURISDICTION

MAGISTRATES First class;

COURT - Sec 87(1) SCA - may only pass sentences of imprisonment not
exceeding 5 years or fine of RM10,000 or whipping up to 12
strokes, or a combination of any sentence.
- Exception: a First Class Magistrate may pass sentences in excess
of its sentencing competence under two provisions:
- Proviso to Sec 87(1) - if any law in force gives it jurisdiction to
do so.
- Cheong Ah Cheow v PP - the judge sentenced the accused
to 18 months’ imprisonment and a fine of RM20000, which
exceeded his sentencing competence, but was within that
prescribed in the Betting Ordinance.
- Sec 87(2) - in consideration of the accused person’s previous
convictions or antecedents.
- Abdul Wahab v PP - the court enhanced the accused’s
sentence from 2 years to 10 years’ imprisonment as the
___________________________________NURUL AIN AFIQAH 2023____________________________________

accused had a total of 12 previous convictions.

Second class;
- Sec 89(1) SCA - may only pass sentences of imprisonment not
exceeding six months or fine not exceeding RM1000 or a
combination of any sentence.

SESSIONS Sec 64 SCA - May pass any sentence allowed by law except death
COURT penalty

HIGH COURT Sec 22(2) CJA - May pass any sentence fixed by law including the
death penalty

- Modification of sentencing competence

- The penal section under which the court imposes sentence stipulates the type, the
maximum sentence and for some offences, a maximum penalty
- The court cannot impose a type of punishment which is not prescribed by the penal
section.
- PP v Roxas Tan Haji - Where the two accused persons were charged and punished
under Sec 135(1)(ii) of the Customs Act which did not provide for the punishment of
imprisonment, the trial court passed the sentence of six months’ imprisonment and
fined them with RM10,000 each. On appeal, the appellate judge held that where the
provision did not provide for the punishment of imprisonment, the trial court had
clearly exceeded its jurisdiction.
- Another constraint is that the punishment imposed, even if it is of the type permitted
under the penal section, it cannot fall outside the minimum and maximum limits
prescribed
- Abu Seman v PP - the offender was sentenced to 5 days imprisonment and RM100
fine who was charged under Sec 11(1) of the Elections Offences Act. Sec 11(1)
provides that the offender shall be liable to imprisonment for 12 months and to a fine
of not less than RM250 and not exceed RM 1,000. Therefore, the minimum fine
should be RM250, not that RM100
- A court is also subject to constraints of sex and age when considering sentences of
death and whipping.
- The death penalty cannot be imposed on:
- Sec 275 CPC - A woman with a child at the time of her conviction
- Sec 97 Child Act - A person who, at the time of the commission of the
offence, was a child
- Sec 289 CPC - the punishment of whipping cannot be imposed on:
- Women
- Men sentenced to death
- Men over the age of 50, except for those sentenced to whipping under
Section 376, 377C, 377CA, 377E of the Penal Code.
- Sec 288(1) CPC - The punishment of whipping shall not exceed 24 strokes for an
adult, or 10 strokes for a youthful offender.
- Plea of guilt:
- Raja Izzuddin Shah v PP - no plea in mitigation should be thrown aside lightly but
must be examined and considered equally with the facts presented by the
prosecution. It is generally accepted that an accused person should be given credit
___________________________________NURUL AIN AFIQAH 2023____________________________________

or discount for pleading guilty, and failure to do so gives rise to interference by a

superior court.
- Soosainathan v PP - The High Court stated that where the learned magistrate made
no reference whatsoever in his grounds of judgement to the guilty plea of the
accused with the result that there is no indication of the consideration given to the
plea, he had obviously not considered it in favour of the accused, and has failed to
explain his reasons for not doing so, thus resulting in a misdirection
- Local Jurisdiction
- Sec 121 CPC - every offence shall ordinarily be inquired and tried by a court within
the local limits of whose jurisdiction it was committed
- Law is territorial and the local limit refers to the territory within which the court may
exercise its original jurisdiction

LOCAL JURISDICTION

MAGISTRATES - Sec 76(1)(2) SCA - The local limit is assigned by the YDPA, but
COURT where none has been assigned, the court shall have jurisdiction
over matters in any part of the local jurisdiction of the High Court
- Sec 2 CPC - ‘local limits’ means the limits of the ordinary
administrative district in which the Court house is situated
- Wong Pang Fing v PP - The appellant was convicted of an
offence in the Magistrate’s Court in Kuching, but on appeal, it was
submitted that the magistrate had no jurisdiction to hear the case
since the offence was committed in the District of Bau which had its
own Court house. It was held that where the offence took place at
the 17th Mile Kuching/Bau Road, and the Bau District and Kuching
are two distinct administrative areas, the 17th Mile was well within
the Bau administrative area. Thus, the magistrate clearly had no
jurisdiction to hear the case at the Magistrate’s Court in Kuching as
he had no jurisdiction over the District of Bau.

SESSIONS - Sec 59(1) SCA - The local limit is assigned by the YDPA, but
COURT where none has been assigned, the court shall have jurisdiction
over matters in any part of the local jurisdiction of the High Court.
- PP v Segaran a/l Mathavan - 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 local jurisdiction of the respective High Court
- Sova v Kasih Sayang Realty - regarding the local jurisdiction of
High Court, the Sessions Court can sit anywhere, at any branch in
Peninsular or West Malaysia

HIGH COURT - Sec 3 CJA - The High Court of Malaya has the jurisdiction to try all
cases within its local jurisdiction that is, the territory comprised in
all eleven states
- Syarikat Nip Kui Cheong Timber v Safety Life - A High Court
located in one state is but a branch of the High Court in Malaya,
and each branch of the High Court in Malaya located in any state
has concurrent jurisdiction.
- Sova Sdn Bhd v Kasih Sayang Realty - A High Court located at
Penang or at Alor Star is but a branch of the High Court in Malaya
and each branch of the High Court in Malaya located in any state
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has concurrent jurisdiction.

- Lt Kdr Balakrishnan v Menteri Pertahanan Malaysia - The local
jurisdiction of the High Court in Malaya covers the whole of
Peninsular Malaysia and should not be interpreted so as to create
individual local jurisdiction in respect of each state in which the
High Court sits.
- Tengku Abdul Muiz Shah v PP - Since the offence was alleged to
have been committed at Johor Bahru, it follows that Johor Bahru
court is the court of competent jurisdiction to hear the application
rather than the court in Kuala Lumpur.

- Exceptions to Section 121;

- These exceptions allow a court to continue to exercise local jurisdiction over
offences even though they did not occur within its local limits.
1. Partly within the local jurisdiction of the trial court
- Sec 122 – 126
- PP v Loh Ah Hoo - the preparatory acts were done in Singapore but the acts
culminated in the goods and declaration form reaching JB resulting in the
offence being committed at the customs in JB.
2. Wholly outside the jurisdiction of the trial court but within the territorial
jurisdiction of Malaysia
- Sec 417 and 418A
3. Outside the territorial jurisdiction of Malaysia
- Even if committed outside Malaysia, still constitute an offence under
Malaysian law
- Extra-territorial jurisdiction of the court to try an offence
- PP v Rajappan - crimes and criminal acts are matters for the state, within
whose territory the criminal acts are committed, irrespective of the nationality
of the offenders. International law also recognizes that a State has power to
punish its nationals or its permanent residents for criminal acts committed by
them outside its territory.
- Offences made extra-territorial;
- offences against the State and offences relating to terrorism under the
Penal Code.
- offences under the Official Secrets Act 1972 and the Sedition Act 1948
- offences under the Malaysian Anti-Corruption Commission Act 2009
- Sec 127A CPC - the trial is to be conducted in Msia
- PP v Rajappan - the accused was married twice. The first marriage occurred
in Malaysia, the second in India. Even though the second marriage was
bigamous, because it occurred in India, the court in Malaysia was held to
have no jurisdiction.
- Sec 7 of CPC - court to be open and public place
- This exception to the general rule allows the exclusion of the public when:
- the court sits as a Court For Children in which event, only prescribed parties
may have access to the proceedings;
- the court exercises its discretion under provisions contained in the SCA and
CJA to exclude the public;
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- the court sits in accordance with the provisions of the Essential (Security
Cases) Regulations 1975 (‘ESCAR’) and exercises its discretion to exclude
the public.

BAIL

- Definition - Blackstone’s Commentaries Book IV - ‘bail’ is defined as a delivery or

bailment of a person to his sureties, upon their giving of sufficient security for his
appearance.
- Yusof Bin Mohamed v PP - Bail means security taken from a person to appear on a
fixed date before a court. Bail is to set free a person who is under arrest, detention or
is under some kind of restraint by taking security for his appearance.
- First Schedule CPC - A matter of bail is determined in the light of whether the
accused was charged with a bailable offence or a non-bailable offence.
- Bail can be given to release a person by;
- Police pending investigation
- Court pending trial
- Sec 387(1) - bailable Offences - officer in charge of police station or any police officer
not under the rank of corporal
- Sec 387(2) - Police Bail or Personal Bond
- Sec 388 - non-bailable - under 16, woman, sick, infirm, no reasonable ground for
crime but sufficient ground for inquiry - not punishable by death or life imprisonment
- Sec 29 - right to be released on bond or bail after 24 hours + not produced before
Magistrate + no remand application
Bailor
- 18 years or above - Preferably a Malaysian citizen
- Sec 390(1) - The court in granting bail will stipulate the amount of bail and the
number of sureties
- Datuk Haji Harun bin Haji Idris v PP - The bailor, who stands surety for the
accused, has a duty to ensure that the accused person attends court unless warrant
of arrest will be issued
Cancellation of bail on application by a surety to be released as bailor
- Sec 393 - Can apply to the court to be absolved from being a bailor and the Court will
ask the accused to appoint a different bailor & failure to do so will result in
detainment
- Valliammai v PP - An application made by a bailor to be discharged as surety should
be attended to promptly.
- Royaya Abdullah v PP - An application for a discharge may be made at any time for
whatever reason or for no reason at all other than the desire to be relieved from
further liability.
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REVISION CLASS:

SEC 113 - INFORMATION TO POLICE - OBLIGATION - WITHOUT BEING CALLED TO

POLICE
SEC 112 -
SEC 107 ONWARDS
ARREST - POWER OF THE POLICE ONCE REPORT IS LODGED - BY POLICE OR
PRIVATE PERSONS (S. 27)
EFFECT OF ILLEGAL ARREST
RIGHT OF ARRESTEE

POWER OF POLICE TO CONDUCT SEARCH - POLICE SEARCH / SEARCH ON

PREMISE - WITH OR WITHOUT WARRANT
PROCEDURES WHEN CONDUCTING SEARCH AT PREMISE
SEARCH WITHOUT WARRANT AT PREMISE - SEC 62, 64, REQUIREMENTS
BODY SEARCH
GENERAL CONDUCT OF POLICE WHEN CONDUCTING POLICE SEARCH
SEC 65, 64

REMAND - IN ORDER TO COMPLETE INVESTIGATION - MORE THAN 24H - S. 117 -

HOW LONG PERSON CAN BE ARRESTED
DELIVERY OF DOCS BACA SENDIRI
CHAIN OF REMAND
MAGISTRATE TAKES COGNISANCE - POWER OF MAG TO INQUIRE ON THE CASE -
SEIZABLE OR NOT - REFER FIRST SCHEDULE
SUFFICIENT NOTICE - PRIMA FACIE - BEFORE DECIDING TO ISSUE SUMMON OR
WARRANT
HOW TO DECIDE SUMMON OR WARRANT - REFER FIRST SCHEDULE

BAIL - TYPES OF OFFENCE - BAILABLE OR NON-BAILABLE - WHETHER BAIL CAN

BE GRANTED - FIRST SCHEDULE
CONDITION ON AWARD OF BAIL - CERTAIN CONDITION CANNOT BE IMPOSED -
PASSPORT - SURETY/BAILOR - PROCEDURES ON SURETY TO DISCHARGE
HIMSELF FROM BEING A BAILOR

CHARGE - MASUK - HOW TO DRAFT A CHARGE - BY NAME / DEFINITION /

DESCRIPTION - LOOK AT THE EVIDENCE ON THE DPP NOT ON THE STORY
SEC 114(a) EA - PRESUMPTION FOR THEFT
JOINDER OF CHARGES - ONE ACCUSED MANY OFFENCES - SEC 164/165/166 - SEC
170
NO HEADING FOR DRAFT OF CHARGE

YG MASUK EXAM:

1. search on premise (with or without warrant)

- determine whether legal or illegal search
- search list also include
- talk about arrest too
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2. drafting of charges
- whether accused person can be jointly tried or not
- refer to cases that is similar (joint trial)
- discuss general rule first then go to exception

3. bail
- what is bail
- what is surety
- how bail is done
- procedure on discharge of bail by sureties
- whether or not the procedure on discharge of bail taken is correct
- read carefully
- whether surety live far away or accused live far away
- what can surety can do
- how surety can discharge bail if he doesn’t want to continue with the bail

4. legality of sentence
- jurisdiction of court (markah sikit)
- legal or not the imposed sentence