CRIMINAL

PROCEDURE I
TUTORIAL 1
1. ALINA BALQIS BINTI HANIF
1161101117
2. AMMAR MUSTAQIM BIN ARIFF HAZNAL
1151100066
3. NROSHA A/P MANOKARAN
1171301990
4. NUR IZZATI SYAMIMI BINTI MOHAMMAD ZAKARIA
1161102055
5. SHANFARANZI BIN ROSLI
1161102014
Question (a)
It is a rebuttable presumption that a Code signifies comprehensiveness. This
applies with equal force to the Criminal Procedure Code (CPC).

Why the Malaysian courts still applies common law of England in criminal
procedure despite the fact that the CPC is already comprehensive?
Question (a) Answer
➔ It is a rebuttable presumption that a Code signifies comprehensiveness. Code means
exhaustive.
➔ In the case of Karpal Singh v PP, it was stated that the code was intended to be an
exhaustive pronouncement of the criminal procedure. The pronouncement and effect
of the code leave no lacuna under normal circumstances.
➔ However, Malaysian courts still applies common law of England in criminal procedure
despite the fact that the CPC is already comprehensive.
Question (a) Answer
➔ S 5 of CPC = allows reference to law relating to criminal procedure for the time being in
force in England.
➔ There are two conditions to it: (i) whenever there’s lacuna

(ii) cannot be inconsistent with the code

➔ Karpal Singh v PP = S5 of the code is indicative of the principles to be applied by local

courts.
➔ PP v Sanassi = by applying criminal Evidence Act read together with S 5 of the CPC the
accused was given a right to make an unsworn statement from the dock.
➔ Mohamed Bin Jamal v Public Prosecutor = Applications of Eng law for additional
evidence after trial.
Question (b)
Saving clause is a provision in a contract, statute, or other legal document containing an
exemption from one or more of its conditions or obligations.

(Adapted from English Oxford Living Dictionaries)

Explain the effect of a saving clause under section 4 of the Criminal Procedure Code to the
criminal justice process in Malaysia.

(FE, 2017-2018)
Question (b) Answer
➔ The general rule is that a saving clause shall not be included automatically in
legislation, it should be specific and be used only when necessary.
➔ S.4 of CPC provides that nothing in the code shall be construed as derogating from
powers or jurisdiction of the High Court.
➔ In other words, CPC provides that its provision does not detract from the powers and
jurisdictions inherent in High Court and conferred by any other law on the High
Court. Therefore, other jurisdiction of High Court which are not stated in the CPC will
not be affected.
➔ As can be seen in the case of Saat Hassan, the court held that S.4 of CPC protects
the inherent jurisdiction of High Court to make any order necessary to give effect to
other provisions under the code, or to prevent abuse of the process of any court and
to secure the needs of justice.
Question (b) Answer
➔ Moreover, in the case of S Selvanathan, the court held that S.4 of CPC indeed does
not restrict the power of High Court.
➔ Furthermore, in the case of Tan Boon Hock v PP, the court held that the power of an
appellate court to order a retrial on a proper charge before another magistrate when it
is of the opinion that an accused was convicted on a wrong charge is discretionary.
Thus, the appellate jurisdiction of the High Court is clear.
➔ In addition, in the case of Hari Ram Seghal v PP, the court held that the powers of
the courts in England to intervene and make rules not provided in the criminal
procedure are inherent and are exercisable in order to correct any injustice.
Question (c)
On 15 August 2019, the High Court judge had passed a written judgment,which found the
Accused guilty as charged. The Accused’s defence counsel filed an appeal and requested
for grounds of judgment. The Registrar informed the defence counsel that the High Court
judge had written an additional ground of judgment under section 278 of the CPC. The
defence counsel contended that the learned judge is incompetent to supplement the first
judgement by delivering additional judgment under s.52(1) of the Courts of Judicature Act
1964.

As a legal attachment student is the defence counsel’s firm, you have been instructed by
your supervisor to do research on the above issue. How would you advise your supervisor?
Question (c) Answer
➔ Issue

Whether the learned judge has the inherent jurisdictions.52 (1) of CJA to supplement the
first judgement by delivering additional judgement under .

➔ Intro

Order 92, Rule 4 of Rule Of Court says that for the removal of doubt, nothing in the rules
shall limit or affect the inherent powers of the court to make any order as may be necessary
to prevent injustice of the court's processes.
Question (c) Answer
➔ Law

In the case of Perbadanan Pembangunan Pulau Pinang v Tropiland Sdn Bhd mentions
that the courts have an inherent jurisdiction to ensure the proper administration of justice in
the judicial process.

➔ Conclusion

The learned judge is incompetent to supplement the first judgement by delivering additional
judgment under S.52(1) of the CJA 1964. This is because the inherent power is not to be
made to strike off the substantive law which the judge had clearly made an alteration by
adding the ground of judgement on a later date ahead the first judgement. therefore, the
decision of alteration has to be set aside.