Topic: Summary Trial

Introduction

§ Summary Trial is a practice of the Magistrate courts and the Sessions

Court (Tengku Abdul Aziz [1957] 1MLJ 185). They are governed under

S.173 CPC

§ The procedure in Summary Trial is generally identical for both summons

and warrant cases.

Procedure on Production

§ A proceeding commences with the appearance of the Accused, either on

his own (on Bail) or on been produce.

§ Appearance in court or on production; the charge is read and explain to

the Accused

§ This necessary to read and explain in the case of Koh Mui Keow (1957)

MLJ 514

§ Particularly where the charge contains 2 or more ingredients and the

accused is unrepresented.

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§ The purpose is to enable the accused to know the essence of the

allegation against him and must be in the language the accused is

conversed - Wong Chin Hew (1952) MLJ 7

§ Though the language in which he is conversant, it may not be his mother

tongue

Case: Fong Hong Siang (1950) MLJ 29

§ The process of reading and explaining should not only be done but the

fact that this was done. It must be recorded in the notes of the

proceedings (must understand the nature and consequences of the plea)

Case: Subramanian (1976) 1 MLJ 76

§ Failure to comply, can be fatal to the conviction on the plea of guilty

Case: Mohd Miskin (1939) MLJ 289

§ In the instances where the accused is charged with more than 1 offence;

each charge should be read separately and the accused is asked to plea

to each charge as it is read to him, and a record of this should be made. –

Mahmood Ali (1964) MLJ 57

§ In a joint-trial, where more than 1 accused person has been charged, the

charge should be read and explain to each accused and the plea of each

accused is recorded separately; after the consequences been explain and

acknowledge by each of the accused – Maung Min Aung (2001) 5 MLJ

140

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§ Any failure in following the procedure separately for each accused,

wearies out that the conviction been bad that in any irregularities would

not be curable under S.422 CPC

Plea of Guilty

§ Where the accused elects to plead guilty, the court must satisfy itself

that:-
rela hati mengaku
(i) it is on the accused himself who wishes to plead guilty

(ii) that the accused understands the nature and consequences of his

plea

(iii) intend made without qualifications the alleged offence

a) Personal Plea of Guilty

§ The court must ensure that it is the accused himself who wishes to plead

guilty

-Tan Kian Chai (1932) MLJ 74

§ Preferably it should be through his own mouth and not through his

counsel. In the case of Abdul Kadir (1984) 1 MLJ 80, where the accused

said out of his own mouth that he understood the charge and choose to

plead guilty; it cannot later with any justification say he did not know the

nature and consequences of his plea.

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§ Counsel may legally make a plea for the accused and the court may

assume it is acting on instructions

§ The best practice is the accused made the plea personally. However, the

accused must understand the nature and consequences of his plea of

guilty – Chin Ban Keat (1974) 15 MLJ 297

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 b) Understand the Nature and Consequences of the Plea

§ UNCP includes:-
once mengaku, takbole kemukakan any defence
(i) accused would have not forward his defence

(ii) the accused knows the nature of his plea of guilty and the nature of

the offence

(iii) it would not be allowed to appeal to his conviction once he has

pleaded guilty where the maximum sentence imposed against him –

(1952) 1 MLJ 592 can only appeal on sentence, not sabitan

(iv) it would not preclude the maximum sentence from being imposed

against the accuse – Lee Weng Tak (1989) 2 MLJ 143

§ If the accused accepted the plea, s.305 CPC bars the accused from

appealing for the convictions made against him.

§ The accused may only appeal on the length of the sentence.

§ S.323 CPC cases can be review of the convictions

c) Admission of Guilty without Qualification

§ Plea of guilty must be an unequivocal plea. There must be no ambiguity in

the plea – Cheng Chong (1967) 2 MLJ 130

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§ There must be nothing to indicate that the accused really want to plea not

guilty or guilty but i.e. “I’m pleading guilty, but…”

§ It is a cardinal principle that a plea of guilty must be unreserved and

unqualified and unequivocal as it would amount to a miscarriage of justice

for a Magistrate to compromise with the accused that if they plead guilty;

it would impose a small fine – Wong Sik Chun (1965) 31 MLJ 4

Plea of Guilty in Joint-Trial

§ In a joint-trial, one of the accused may plead guilty, it is then desirable for

the court to inquire whether the prosecution or the remaining accused

wish to call in as a witness

§ It is then desirable in the interest of justice that he be sentence and then

remove from the court – Yap See Tek (1953) 1 MLJ 434

§ Rationale: as the weight of the evidence as to preserve his credit as a

witness, so that he can’t point fingers to the other accused persons.

§ In the case of Sek Ah Han (1953) 1 MLJ; it was said unless the accused

has been sentenced by the court, his testimony as a witness would carry

very little weight as there is a possibility that in giving evidence;

particularly for the prosecution, he might hope for a lighter sentence or for

a charge against him would be withdrawn.

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§ Where it is intended to call him as a witness, it is then desirable to

consider the plea of guilty until after the trial of the co-accused.

§ Example: Abetment- (1) instigation (2) Aiding (3) Conspiracy

§ This is to avoid upon situation of other co-accused been acquitted

resulting the element of joint liability constituted of the joint offence been

no longer in existence.

Accepting the Plea of Guilty

fakta kes tender masa mengaku salah

§ It is an establish practice that the plea of guilty, the prosecution is

required to tender a statement of facts outlining the nature of the offence

notwithstanding the plea of guilty and even though the CPC does not

require an outline of facts to be given – He King Kiok (1992) 2 MLJ 281

§ This matter of practice, which evolves as a means of assisting the courts

to determine the appropriate sentence has develop into a legal duty to

record the statement of the facts for the purpose of ensuring the elements

of the charge had been made out – Mak Sew Kok (1994) 3 SLR 140

§ The court would only accept the plea after the accused has admitted to

the facts

– Lian Kian Woon (1991) 1 MLJ 51

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§ The facts would be admitted without qualification – Lee Weng Tek (1989)

4 MLJ 141

§ Where the accused qualifies the facts, the court must reject the plea of

guilty.

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Withdrawing the Plea of Guilty

§ The trial courts have a discretion to allow the withdrawal of the plea of

guilty – Abdul Mormin (1939) MLJ 323, at any time before the sentence

– Wong Sing Yeow (1968) 1 MLJ 234

§ Although the courts have the discretion, it must be exercise judicially and

for valid reasons.

§ It cannot be allowed to change his plea unless on valid and sufficient

grounds that satisfy the court that it is proper in the interest of justice that

it will allow to do so – Abdul Kadir Abdul Rahman (1984) 1 MLJ 180

§ The absence of good and valid reasons would preclude the court from

exercising its discretion – Wong (1956) 22 MLJ 251

§ In the case of Sam Kim Kai (1960) 1 MLJ 265, the withdrawal was

questioned because the records did not indicate that the accused did not

understand the nature of the criminal charge or there was anything to

show why the accused was allowed to change his plea

§ In the case of Wong Kok Bin (1994) 3 CLJ; the trial court was correct in

its decision in rejecting the accused’s application to withdrawn his plea as

the fact showed that he understood the charge and had without

qualification and has pleaded guilty.

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§ Where the application is made before facts are given, the practice is to

allow it. This was explained in Wong Eng Hok (1968) 1 MLJ 65; because

all the accused need then to do is to refuse to admit to the facts or enter a

qualified plea in which event the court have to reject the plea.

Trial

§ Under S.174 (a) CPC, the prosecution may not open its case (i.e. the

prosecution would have to explain what is the charge; the preliminaries in

High Court but in Subordinate Court) no need for the prosecution to do

that, just call the witness and may produce his evidence by calling

witnesses and producing exhibits.

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§ Trial may be seen in following stages:-

(i) prosecution establishing its case

(ii) prosecution establishing a prima facie case

(iii) the calling on the defence

(iv) on conclusion of the whole case; the court shall then decide whether

the prosecution has made out its case beyond reasonable doubt

I. Prosecution establishing its case

§ Prosecution may establish his case by calling witnesses. The law does

not require to recall all witnesses to a crime – Wong Leong Fat (2001) 5

CLJ 257

§ And all witnesses’ evidence are unnecessary, hostile or not believe –

Shanmugam (1932) MLJ 75

§ And also all witnesses which are are not material or for the defence –

Sebastian (1968) 2 MLJ 214

§ Or all person that the statement that has been recorded it would be a

waste of time and money to bring witnesses to court where their evidence

would throw no light – Lee Park

§ 3 proposition was laid down in the case of Lee Long (1956) MLJ 194:-

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 (i) All witnesses from whom statement has been taken should be

brought to court except that evidence that would throw no light to

the case. Any witnesses not brought to court or for the accused i.e.

defence’s witnesses.

(ii) Having brought the witnesses to court, the prosecution was not

bound to call or after cross-examination the witnesses whose

evidence are unnecessary and hostile.

(iii) The existence of witnesses that are brought to court but not call or

offered for cross-examination, must be brought at the attention of

the court, so that they can be available to the defence

§ Must prove to discharge a doubt beyond prima facie case

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Discretion to call witness

§ This discretion must be guided by the prosecution’s duty to discharge its

burden of proof – Abdullah Zawawi (1985) 2 MLJ 16

§ Sufficient witnesses must be call essential to unfold the facts on which the

prosecution’s case is based

§ The prosecution must call all such witnesses or at the very least, offer the

witnesses for cross-examination – Chan Soo Chow –(2003) 1 AMR 748

§ This role of the prosecution must produce enough evidence does not

requires to be call when it results in repetition except when corroboration

is required.

§ A trial is not for defence counsel to re-investigate the case and for all the

witnesses to be brought before the court to be question by him –

Kesavan (2004) MLJ 144

§ However, there must be sufficient evidence call to establish a case with

no material case to fill the gap.

§ When the prosecution exercises its discretion not to call material

witnesses, it runs the risk of S.114(g) EA be raised against him –

Samsudin (1962) 3 MLJ 405

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Witnesses for cross-examination

§ S.173 (e) CPC stated that the accused has the right to cross-examine all

the prosecution’s witnesses – Paramamsevam (1970) 2 MLJ 106

§ Cross-examinations is:-

(i) to object the irrelevance, inadmissible and prejudicial evidence

(ii) to test the credibility of prosecution’s witnesses

(iii) to expose discrepancies and inconsistencies in the prosecution’s

case

~>suggest to look at the case as a whole; sum of all the evidence given by

all the witnesses and look whether there’s any discrepancies and

inconsistencies

(iv) to lay out its defence so as it gives credibility when defence is call

§ Cross-examination itself is not evidence but the answers in cross-

examination are evidence.

§ Where a witness is not challenge in cross-examination, the assertions in

the examination-in-chief stands as undisputed evidence – Mohd Suhaimi

(2002) 5 MLJ 233

§ And that the witnesses evidence is accepted in its totality – Abang

Raman (1942) 1 MLJ 346

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Making an Offer to the Defence

§ The existence of witnesses brought to court and not call or offered for

cross-examination should be made available to the defence – Lee Chue

Hiang (1995) 2 MLJ 433

§ There’s nothing improper to prosecution not calling a witness but instead

making them available to the defence – Gurbachan Singh (1966) 2 MLJ

125

§ Making the witnesses available would avoid the presumption of S.114(g)

EA imposed on the prosecution; that there’s allegation made on motive on

the prosecution’s part in not calling a witness- Amir Mahmood (1996) 5

MLJ 159

Maintaining the Chain of Evidence

§ The adducing of evidence includes the tendering of exhibits, where

exhibits are concern, the rule of law is the burden is on the prosecution to

prove beyond reasonable doubt that the subject of the charge is the same

thing that was recovered and eventually brought before the court –

Sulaiman Mohd Noor (1996) 1 MLJ 196

§ In adducing of evidence, one must ensure that there is no break in the

chain in the evidence tendered in the court where it is the same exhibits

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 that has been taken possession of by the officer that conducted the

search

§ For this reason, contemporaneously with the search list is recovered to

establish the integrity of the search – Lee Soon Siang (1993) 2 CLJ 214

§ However, the purpose of tendering the search list would negate if doubt

arise that the exhibit tendered is not the same as the real exhibit ceased.

§ Where the object is really identifiable or can be easily marked and the

officer who took possession is able at the trial to identify it, as every object

that was recovered it, is enough and there’s no record to call every officer

that handled it

§ Such object may be a gun or documentary exhibits.

§ But where the object cannot be easily identified for example; blood

samples or drugs, the custody movement is any; or such exhibits may

have vital link.

§ It is necessary that there is no break in the chain from the time of its

recovery to its final production at the trial.

§ And for this reason, it is necessary to call every witness who handle it, if

there’s doubt to its identity – Jalani Saliman (1997) 5 MLJ 55

§ In the case of Teoh Hong Chai (1987) 1 MLJ 220; the Supreme Court

held that where there’s a doubt as to the identity of the exhibits, a failure

to adduce the evidence to provide a necessary link would be fatal to the

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 prosecution’s case. In other words, it is unnecessary to call evidence to

ensure that there is no break but where a doubt exist as to the identity of

the exhibit.

Submission at Closing of PP’s case

§ There’s no law in the CPC but the case law allows it.

§ There’s no statutory law relating to on close of prosecution but it is a

practice that the defence is allowed to make a submission and that after

the submission the PP have the right to reply – Darnabi (1953) 19 MLJ

163 and Ong Khoone Seng (1982) 1 MLJ 394

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II. CASE FOR THE DEFENCE

Calling of the Defence

§ Only when the court on being satisfied on prima facie case is made out

as required under S.173 (f) (i); that the Accused is called to enter the

defence

§ In cardinal principle is that the prosecution must prove its case. That

there is not a duty of the Accused to proof his innocent – Tan Foo

Soon (1967) 2 MLJ 19

§ Where the court finds a prima facie case is established against the

Accused, the Accused is then under obligation to submit to the order to

enter defence.

§ The Accused cannot appeal or file a revision at this stage. But later

can appeal – Teoh Tin Lai (2001) 1 MLJ 175

§ 173 (ha) On entering his defence, the Accuse may elect:-

(i) give evidence on oath from the witness box

-> would subject to cross-examination

(ii) make an unsworn statement from the dock

(iii) remain silent – Sanasi (1970) 2 MLJ 198

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§ Whatever alternative the Accused chooses, he is at liberty to call

Witnesses to testify on his behalf (4th Option) – Mohd Salleh (1969) 1

MLJ 104

§ There are no statutory provision that the Magistrate must record the

reason for calling the defence.

§ However, the Court of Appeal in the case of Mohd Radzi (2002) 3

CLJ794; was of the view that the record should be made if he satisfied

that the PP has proven its case.

§ In some cases which the order to enter defence is based on

presumption, the court must give reasons. Burden of proof is different.

To rebut the presumption. c/f balance of probabilities. (example

Dangerous Drugs Act)

§ The rule of practice is that the court will convict the Accused if he

remains silent.

Sworn Evidence

§ The Accused has the right to decide whether or not he will be a witness,

he cannot be compel to give evidence – Lew Sang (1948) 14 MLJ 83

§ There’s no duty on him to call any evidence and no unfavorable

inferences must be drawn – Abu Bakar (1967) MLJ 288

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§ Or to give the impression the only reasonable inference that he is guilty

– Rozie Ramly (1997) 3 CLJ Supp 479

§ Where the Acuused give sworn evidence, S.173 (j) (iii) states, his

evidence shall be taken before that other defence’s witnesses –

Sulaiman Johan (2000) 1 AMR 193

Statement from the Dock

§ The accused may elect to made statement from the dock although

there is no specific provision in the CPC – Sanasi (1970) 1988

§ The accused then, not subject to cross-examination – IP Yang Wah

(1958) 24 MLJ 34

§ It is the law, the court must consider an unsworn statement – Hong

Yeong Fatt (2001) 5 MLJ 297

§ The weight to be attached to the statement is however the matter for

the trial Magistrate – Lee Boon Guan (1954) 29 MLJ 103

§ Such statement on the face of it carries certain limitation. It does not

have the sanction of an order and it is not testify in cross-examination.

§ But when such a statement is made, the court have to consider the

defence pre-result may occur, it may convince the court of his innocent,

it may cause the court to doubt the truth of the prosecution’s case, in

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 which event he is entitled to an acquittal or it may sometimes

strengthens the case for the prosecution – En An Kiat (1966) 1 MLJ 9

§ Written or oral or based on his statement.

Remain Silent

§ The accused choice not to give evidence and failure of the accused to

testify is not the evidence of guilt – Chan Tet Lit (1994) 1 CLJ 362

§ No adverse inference should be drawn by accused’s failure to call

witnesses or give evidence on his behalf – Tan Gong (1985) 1 MLJ

355

Calling of Witnesses

§ Event on the accused who remain silent may call witnesses

§ No duty is cast on the defence to call witness and the adverse

presumption shall arise for failure to call any particular witness –

Roslan Karim (1977) 1 MLJ 54

§ Or witness made available by the defence – Oh Ah Yu (1949) 15 MLJ

151

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§ The accused has a right to call witness but this right is subject of

control of the court in the case of Dr. Seri Anwar Ibrahim (2000) 3

MLJ 638, it was said that it is not the right of any party to call witnesses

but only a right to apply for summons to call witnesses. (see 173(l)(i)

CPC.

§ In law, a party cannot deny of the right to witnesses prepared to give

material or relevant evidence.

§ He has the right to call witnesses and the summons will then be issue,

but he has no right to call a person not in possession of such evidence.

§ So in the trial analysis, the Accused may call whoever he wants but to

support his defence but subject for the court to decide. Only material

witnesses are allowed to call.

Submission Control for the Defence

§ Control of defence, the accused has a right under S.174 (b) CPC to

sum up the whole case if his witnesses gave evidence.

§ Issue: What happen if the accused remain silent? Would he be allowed

to submit?

§ Interpretation of the law

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§ Where the accused elects to remain silent, there is no right to make a

submission

§ In Loh Kim Fatt (1989) 1 MLJ 304; this situation occurred and the High

Court ruled, the trial court was right in rejecting the accused’s

application to make a further admission even he was allowed, it would

have nothing new to hold except to repeat at close of prosecution’s

case.

Finding of the Court

§ Under S.173 (m) (i), on conclusion of the trial, the court must find the

prosecution’s case proved beyond reasonable doubt.

§ What is beyond reasonable doubt?

§ There’s no burden on the accused to prove his innocence – Soh (1995)

1 MLJ 538

§ The court is not entitled to interfere the guilt of the accused, because

the evidence he gave was rejected – Chua Beow Huat (1970) 2 MLJ

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§ It should never an approached in a criminal case the basis of deciding

which conflicting version he should believe – Mohd Yatim (1950) MLJ

57

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§ Or which version to be true or untrue but rather he must be satisfied,

the accused’s guilt is proved beyond reasonable doubt – Gan Poh

Chai (1968) 1 MLJ 2

§ The Supreme Court in Mat v PP (1963) held, the court can convict an

accused only if it is satisfied:-

(i) beyond reasonable doubt as to his guilt

(ii) the court may also convict the accused if he did not accept or

believe the accused’s and he does not raise any reasonable

doubt on his case.

(iii) Issue: Would it raise a doubt, eventhough you don’t believe it?

The falsity of the defence does not relieve the prosecution of its

burden. The court must nevertheless, give new consideration as

to why the defence story; though could not be believe it did raise

doubt.

Passing of Sentence

§ S.173 (m) (ii) states; on being satisfied that the case is proved beyond

reasonable doubt, the court would pass sentence according to law,

which was stated in Jaafar Daud (1981) 2 MLJ, it must between the

ambit of the punishable section and in accordance with judicial principle.

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Plea in Mitigation

§ It is a practice before sentence that the accused is given the opportunity

to be heard in mitigation eventhough there’s no express provision for

such a plea – Lian Kian Boon (1991) 1 MLJ 51

§ Plea of mitigation merits consideration. In the light of the facts of the

case and more so when it is not contradicted by the PP v Zaidon Sharif

(1996) 4 CLJ 441

§ Or even if the offence calls for a deterrence sentence – Lee Peng Kong

(1986) 2 MLJ 139

§ Whatever the plea is, it must not be thrown away for a side lightly but

must be examine and considered equally with the facts presented by the

prosecution

§ Both aspects must be examined in their perspective, so as to strike a

balance on the scale of justice – Zulkiflee Omar (1998) 1 CLJ 1079

Reply from the prosecution.

§ It is also usual for the prosecution to reply. The reply should be limited to

matters raised in the plea of mitigation. No controversial facts should be

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 referred to and only facts that can be considered are those relevant to

the charge or have been admitted to the accused.

§ The fact whether he has previous conviction would be made known to

the court to enable the court to decide on the appropriate sentence.

§ Prosecution should produce proof and it should be put to the accused for

him to admit or deny it.

§ If he does not admit it, evidence on previous convictions should be

proved. The court can only act on his previous conviction only when it is

admitted or proved –Low Yin Fah (1966) 2 MLJ 206

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Question:

A was 22 years old, and he was charged with snatch theft of RM1000

from Anek. In his plea of guilty, he stated that he is a 1st offender and

requested for a lenient sentence. The Magistrate held;

“The offence is serious, you plea of guilty (mitigation factor) does not

impress me; despite the fact that you are a 1st offender. You are

sentence to 8 years imprisonment”

1. Can he appeal to the conviction? –> S.305 CPC; NO

2. Can he appeal against the sentence -> YES, because he’s a 1st

offender

3. If so, what are the grounds?

è the sentence is illegal

è Outside the scope of S.87 CJA i.e. the Magistrate has extended

his power of sentencing.

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