Chapter 1 - Jurisdiction (Pending Mind Map) Flashcards
JURISDICTION
Overview
1) Subordinate - 2nd class magistrate
2) Subordinate - 1st class magistrate
3) Subordinate - Sessions Court
4) Additional powers of Subordinate Courts
5) CJ - High Court
5) CJ - Court of Appeal
6) CJ - Federal Court
SUBORDINATE - 2ND CLASS MAGISTRATE
Overview
1) Trial jurisdiction
2) Sentencing jurisdiction
3) Additional powers
SUBORDINATE - 2ND CLASS MAGISTRATE
Trial jurisdiction
1) The law:
- S.88 SCA: imprisonment not exceeding 12 months or punishable with fine only.
- if powers of punishment is inadequate, he shall take necessary steps to adjourn the trial by First Class Magistrate.
2) Application & scope - N Indra Nallathamby v PP:
SUBORDINATE - 2ND CLASS MAGISTRATE
Sentencing jurisdiction
1) The law - S.89 SCA:
- not exceeding 6 months imprisonment;
- fine not more than one thousand ringgit.
sentence combining either of the sentence.
2) Application & scope - N Indra Nallathamby v PP:
-
SUBORDINATE - 1ST CLASS MAGISTRATE
Overview
1) trial jurisdiction
2) application & scope of trial jurisdiction
3) sentencing jurisdiction - general
4) sentencing jurisdiction - exception 1
5) sentencing jurisdiction - exception 2
SUBORDINATE - 1ST CLASS MAGISTRATE
trial jurisdiction
1) The law - S.85:
- imprisonment: does not exceed 10 years;
- fine: offence punishable with fine only;
- offences: S.392 + S.457
2) Scope:
- Imprisonment: does not exceed 10 years;
- Fine: punishable with fine only;
- Offences: S.392 & S.457
SUBORDINATE - 1ST CLASS MAGISTRATE
application of trial jurisdiction
1) “shall have” - Nadarajah v PP:
- ‘shall have jurisdiction’ means that in either of the courts a case is filed, it is imperative for them to exercise the jurisdiction.
- When a case falling within jurisdiction of magistrate’s court but is filed at sessions court, court cannot decline to exercise the jurisdiction.
2) whether can try S.397 PC - Re Subramaniam a/l Sanasi:
- S.397 is a rider to S.392;
- S.397 per se does not create any such offence and therefore it can be tried by FCM.
3) whether can try S.397 PC - Lee Heng Kooi v PP:
- S.87 SCA should be read with opening phrase of S.85 SCA.
- As S.87 SCA clearly confers powers to a First Class Magistrate to impose (inter alia ) a sentence of whipping of up to twelve strokes, jurisdictional powers to try offences which allow for whipping must obviously implied by virtue of S.40 of the Interpretation Act 1967.
SUBORDINATE - 2ND CLASS MAGISTRATE
sentencing jurisdiction - general
S.87(1):
- 5 years imprisonment;
- fine of 10k;
- whipping up to 12 strokes;
- any sentence combing above sentences.
SUBORDINATE - 1ST CLASS MAGISTRATE
sentencing jurisdiction - exception 1
1) The law:
Proviso to S.87(1):
2) The scope:
- jurisdiction to award the full punishment authorised by the law.
2) Examples:
- Cheong Ah Cheow v PP:
High Court proceeded to affirm the fine of RM20k by the Magistrate - PP v Yap Sin Peng:
High Court enhanced the fine of RM2k to RM20k.
SUBORDINATE - 1ST CLASS MAGISTRATE
sentencing jurisdiction - exception 2
1) The law:
- S.87(2) SCA
2) The scope:
- excess punishment by reason of previous convictions.
3) Scope - Soosainathan v PP:
- S.87(2) provides for statutory sanctions for an increased penalty;
- Previous convictions are relevant to satisfy the statutory requirement for the purpose of subjecting the accused to increased penalties allocated for second or subsequent offence.
4) Duty of prosecution - PP v Tengku Hitam:
- Prosecution must review and satisfy itself whether the maximum punishment which a court can impose is adequate before a case is presented.
- 87(2) should only be invoked when the case takes an unexpected turn and the sentence that can be imposed (as reviewed earlier) is inadequate.
5) Entitlement to previous convictions - Abdul Wahab v PP:
- magistrate is not entitled to have the previous convictions of the accused until after the accused has been convicted.
6) Duty of Magistrate - Govindnan a/l Chinden Nair:
- when a Magistrate invoked 87(2) to impose sentences and no appeal had been lodged against the sentence, he must transmit the record to the High Court stating his reasons to do so.
- High Court may satisfy itself as to the correctness, legality or propriety of the sentence imposed in the exercise of the special power under S.87(2).
SUBORDINATE - SESSIONS COURT
Overview
1) trial jurisdiction
2) sentencing jurisdiction
3) reference to constitutional question
SUBORDINATE - SESSIONS COURT
Trial jurisdiction
1) The law - S.63 SCA:
- Offences: all offences
- Exceptions: offences punishable with death.
2) Scope - Ng Kook Kin v PP:
- When an accused is tried with an offence that directly mentioned Sessions Court, the word “shall” in the provision is mandatory.
- Thus, only Sessions court is vested with jurisdiction to hear the case.
SUBORDINATE - SESSIONS COURT
Sentencing jurisdiction
The law - S.64 SCA:
- Sentence: All sentence
- Exceptions: Death sentence
SUBORDINATE - SESSIONS COURT
Constitutional question
S.30(1) CJA:
- when there is any question arises to the effect of any provision in the Constitution, presiding officer may stay the proceedings & transmit the record to the High Court.
ADDITIONAL POWERS OF SUBORDINATE COURT
Overview
1) Source of additional powers
2) List of additional powers
3) Exercising additional powers
ADDITIONAL POWERS OF SUBORDINATE COURT
Source of additional powers
S.99A CJA:
- additional powers are set in Third Schedule.
ADDITIONAL POWERS OF SUBORDINATE COURT
List of additional powers
1) Res judicata & multiplicity of proceedings:
- power to dismiss or stay proceedings where the matter in question is res judicata;
- or because of multiplicity of proceedings, the proceedings ought not to be continued.
2) Stay of proceedings:
- Power to stay proceedings unless they have been instituted correctly by the reasons thereof;
- i.e. where cause of action arose.
3) Transfer of proceedings:
- Power to transfer any proceedings to another court of co-ordinate jurisdiction;
- Power is exercisable on its own motion or on application.
ADDITIONAL POWERS OF SUBORDINATE COURT
Exercising additional powers
Dunlop Malaysian Industries Bhd v PP:
- such powers can be exercised only in the manner prescribed by a written law.
JURISDICTION OF HIGH COURT
Overview
1) Jurisdiction conferred by statute - trial jurisdiction
2) Jurisdiction conferred by statute - sentencing jurisdiction
3) Jurisdiction conferred by statute - appellate jurisdiction
4) Jurisdiction conferred by statute - revisionary jurisdiction
5) Jurisdiction conferred by statute - constitutional question
6) Inherent powers of HC
JURISDICTION OF HIGH COURT
Jurisdiction conferred by statute - trial jurisdiction
1) The law:
S.22(1) CJA
2) Scope:
- Offences: all offences
- Criterion:
- within its local jurisdiction
- on the High Seas on board of any ship / aircraft registered in Malaysia
- committed by any citizen or any PR;
- committed by any person where the offence is piracy by the law of nations.
JURISDICTION OF HIGH COURT
Jurisdiction conferred by statute - sentencing jurisdiction
S.22(2) CJA:
- all sentence allowed by law.
JURISDICTION OF HIGH COURT
Jurisdiction conferred by statute - appellate jurisdiction
S.26 CJA:
- hear appeals from subordinate courts within the territorial jurisdiction of the High Court.
JURISDICTION OF HIGH COURT
Jurisdiction conferred by statute - revisionary jurisdiction
1) Revision of criminal proceedings of sub-courts -S.31 CJA:
- powers of revision in respect of criminal proceedings in subordinate courts.
2) General revisionary or supervisionary power - S.35 CJA:
- call for the record of the proceedings at its own motion or at the instance of any party or person interested.
JURISDICTION OF HIGH COURT
Jurisdiction conferred by statute - constitutional question
1) The law & scope - S.30 CJA:
- power to examine the record of proceedings should any question of constitution arise in the subordinate courts;
- If the judge considers that there is constitutional issue, he should refer the question to FC (per S.84 CJA).
2) Procedures - Gan Boon Aun v PP:
- HC decides whether there was a question of constitutional issue on a matter referred to it.
- No constitutional issue - send back to Sessions Court for disposal.
- Yes constitutional issue - transmit to FC.
NOTE: HC does not have the power to determine constitutional issue.
JURISDICTION OF HIGH COURT
Inherent powers of HC
1) Scope & test - Karpal Singh & Anor v PP:
- Subordinate Courts have no inherent power.
- Test - miscarriage of justice:
- i.e. Power may be invoked by HC when there is a miscarriage of justice.
2) Applicability - Karpal Singh & Anor v PP:
- No overriding express provision or when there is alternative remedy;
- i.e. Inherent power cannot be invoked to override an express provision of law or when there is other remedy available.
2) Applicability - Chew Wai Keong v PP:
- The inherent powers are strictly confined to procedural matters only.
JURISDICTION OF COURT OF APPEAL
Overview
1) Constitution of CA
2) Appellate jurisdiction
3) Powers of CA
JURISDICTION OF COURT OF APPEAL
Constitution of CA
Article 121(1B) FC:
- Jurisdiction: appeals from decision of High Court in trial or appellate jurisdiction;
- Exception: decisions made by Registrar of HC
- Other jurisdiction: which may be conferred by any other written law.
JURISDICTION OF COURT OF APPEAL
Appellate jurisdiction - the law & scope
1) The law:
- S.50 CJA
2) Scope:
- General: by HC in original jurisdiction or appellate / revisionary jurisdiction.
- Exception: for matter originated from Mag. court, matters are confined to question of law only & must ask for leave.
JURISDICTION OF COURT OF APPEAL
Appellate jurisdiction - application
Appeal from Magistrate’s court - whether limitation applies to PP:
1) Previous position - PP v Pasupathy Kanagasaby:
- Confinement of appeal from Magistrate’s court on the question of law only is not applicable to Prosecution.
2) Current position - PP v Mahathir Muhammad:
Confinement to appeal on question of law applicable to PP as well as the accused.
JURISDICTION OF COURT OF APPEAL
Powers of CA - the law
S.60 CJA:
- confirm, reverse or vary
JURISDICTION OF COURT OF APPEAL
Powers of CA - against a conviction/acquittal
1) Reverse
2) Vary
3) Order for retrial & remit back
*appeal against conviction shall be dismissed if there is no substantial miscarriage of justice.
JURISDICTION OF COURT OF APPEAL
Powers of CA - against a sentence
1) Confirm
2) Vary
3) Pass other sentence
JURISDICTION OF FEDERAL COURT
Overview
1) Constitution of FC
2) Advisory jurisdiction of FC
3) Appellate jurisdiction
4) Constitutional issue
5) Inherent power
JURISDICTION OF FEDERAL COURT
Constitution of FC
1) Appellate - Art. 122(2):
- hear appeals from CA in appellate jurisdiction & HC in trial jurisdiction.
2) Validity of the law - Article 128:
- Jurisdiction to determine the validity of the law.
JURISDICTION OF FEDERAL COURT
Advisory jurisdiction of FC
Article 130:
- YDPA may refer question to Federal Court.
JURISDICTION OF FEDERAL COURT
Appellate jurisdiction
1) S.86 CJA - same power as CA & HC:
- FC shall have same jurisdiction;
- FC shall exercise the same power;
- As HC & CA.
2) S.87 CJA:
- appeal from CA in its appellate jurisdiction.
3) Leave to appeal - Siow Chun Peng v PP:
- Leave to appeal to FC cannot be made if the decision is from appellate jurisdiction of HC.
- Hence, when the case starts at Subordinate Court, appeal cannot be made to FC.
4) Striking-out an appeal - Ahmad Zubir Hj Mursid v PP:
- FC will only have jurisdiction to hear and determine any appeal from the decision of the Court of Appeal in its appellate jurisdiction in respect of matter decided in the High Court in its original jurisdiction.
- The trial court, in the present case, was the Sessions Court.
- The High Court, in hearing the motion, could not be said to be exercising its original jurisdiction.
- The subject matter of the motion was in relation to the charges that were preferred against the appellant in the Sessions Court.
- Appeal is struck out for abuse of process.
JURISDICTION OF FEDERAL COURT
Constitutional issue
1) Powers to determine constitutional issue:
S.84 CJA:
- reference by HC.
2) Procedures for determination - Gan Boon Aun v PP: - HC decides whether there was a question of constitutional issue on a matter referred to it.
- No constitutional issue - send back to Sessions Court for disposal.
- Yes constitutional issue - transmit to FC.
*NOTE: HC does not have the power to determine constitutional issue
JURISDICTION OF FEDERAL COURT
Inherent power
1) The power - r.137 RFC:
- nothing in the Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.
2) Scope of power - DSAI v PP (2010) 7 CLJ 397:
- r.137 RFC allows FC to hear any application or to make any order to prevent injustice or an abuse of the court’s process.
- r.137 RFC cannot be construed as conferring upon the Federal Court a statutory jurisdiction or a new jurisdiction to hear any application to review its own decision.
3) Grounds to invoke - Asean Security Papermills Sdn Bhd v Mitsui Sumimoto, inter alia:
- coram failure;
- infringement of statutory law.
EXTRA-TERRITORIAL JURISDICTION
Overview
1) Offence committed outside Malaysia
2) Extra-territorial Offences Act
OFFENCE COMMITTED OUTSIDE MALAYSIA
The law
1) Law & scope
2) Relevant sections in Penal Code
3) Application
OFFENCE COMMITTED OUTSIDE MALAYSIA
Law & scope
1) Law:
- S.127A CPC
2) Scope:
- outlines the liability of offences committed outside of Malaysia.
OFFENCE COMMITTED OUTSIDE MALAYSIA
Relevant sections in Penal Code
1) S.3:
- Any person liable by law to be tried for an offence committed beyond the limits of Malaysia, shall be dealt with according to the provisions of this Code for any act committed beyond Malaysia, in the same manner as if such act had been committed within Malaysia.
2) S.4:
- Extension of Code to extraterritorial offences
3) S.494 - bigamy:
- Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife and whether such marriage has taken place within Malaysia or outside Malaysia, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fin
OFFENCE COMMITTED OUTSIDE MALAYSIA
Application
1) pre-amendment position - PP v Nan Prasit:
- Accused was convicted for bigamy in contravention of S.494 PC when the second marriage took place in Australia.
- HC quashed the conviction & held that Sessions Court has no jurisdiction to try the offence of bigamy committed outside the Federation.
2) Application - PP v Rajappan:
- It was held (then) that the Magistrate has no jurisdiction to try the offence of bigamy committed outside Malaysia.
EXTRA-TERRITORIAL OFFENCES ACT 1976
The law & principles
1) The law & scope:
- must be considered with S.127A CPC.
2) Application - S.66 MACCA
3) OAOSA & Sedition Act
LOCAL JURISDICTION
Overview
1) General rule
2) Exception 1 - consequences
3) Exception 2 - two acts done at two different places
4) Exception 3 - specific offence
5) Exception 4 - scene of offence is uncertain
6) Exception 5 - offence committed on a journey
GENERAL RULE ON LOCAL JURISDICTION
Overview
1) The law & scope
2) Meaning of local limits of jurisdiction
3) The jurisdiction
4) Assigned by YDPA
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GENERAL RULE ON LOCAL JURISDICTION
The law & scope
1) The law - S.121:
- Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed.
2) Scope - McLeod v AG for NSW:
- The jurisdiction of a crime belongs to the country where the crime is committed.
3) Deciding jurisdiction - PP v. Nik Soh:
- To decide the issue of jurisdiction, a Court is required to look only on the face of the charge.
4) Recent - PP v Vishnu Devarajan (HC, 2016):
- pernyataan TEMPAT kejadian jenayah itu berlaku seperti dalam Kertas Pertuduhan akan memberikan suatu bidang kuasa untuk Mahkamah tersebut mendengar dan membicarakan kes tersebut.
GENERAL RULE ON LOCAL JURISDICTION
Meaning of local limits of jurisdiction
1) Meaning - S.2:
- limits of the ordinary administrative district in which the Court house is situated.
2) Application - Wong Pang Fing v PP:
- Magistrate who was a resident magistrate in Kuching has no jurisdiction to hear the case as he has no jurisdiction over the district of Bau.
GENERAL RULE ON LOCAL JURISDICTION
The jurisdiction
1) The jurisdiction - S.3:
- all offences under PC shall be tried in accordance with CPC;
- all other offence under any laws shall be tried according to the same provision;
- e.g. drugs offence in accordance with DDA.
2) Explanation - Ltd Kdr Balakrishnan v Menteri Pertahanan Malaysia:
- Article 121 states that there shall only be two HC; i.e. HC of Malaya & HC of SS.
S.3 shall not be interpreted to mean the separate jurisdictions according to several states in Malaya. - HC of Malaya covers the entire territory of Peninsular Malaysia.
3) Recent - 29/9/2020 per JC Datuk Aslam Zainuddin in KL HC:
- The High Court quashed a conviction and sentence meted out by the court below on the grounds that the Sessions Court in Kuala Lumpur did not have the territorial jurisdiction to hear this matter as the offence was committed in Johor Bahru.
4) Deciding jurisdiction - PP v. Nik Soh:
- To decide the issue of jurisdiction, a Court is required to look only on the face of the charge.
GENERAL RULE ON LOCAL JURISDICTION
Assigned by YDPA
1) The law:
- S.59 SCA: YDPA shall have the power to assign local limits of jurisdiction to Sessions court.
- S.76 SCA: YDPA shall have power to assign local limits of jurisdiction to Magistrates’ court.
2) Explanation - Tengku Abdul Muiz Shah & Ors v PP:
- MC & SC have jurisdiction to hear & determine any civil or criminal cause or matter arising within the local jurisdiction assigned to them by YDPA; or
- if no such local limits have been assigned by YDPA, hear any case arising in any part of the local jurisdiction of the respective HC.
EXCEPTION 1 - CONSEQUENCES OF THE OFFENCE
Overview
1) The law & the scope
2) Recent application
EXCEPTION 1 - CONSEQUENCES OF THE OFFENCE
The law & scope
1) The law:
- S.122
2) The scope - Wong Pang Fing v PP:
- consequence which forms part of the offence.
- example: causing hurt (act) + death (consequence) = murder (offence).
EXCEPTION 1 - CONSEQUENCES OF THE OFFENCE
Recent application
HC, 2016
PP v Vishnu Devarajan:
- Melalui peruntukan undang-undang di bawah S.59 SCA, S.121 CPC & S.122 CPC, adalah jelas menyatakan
- Mahkamah mana yang akan mendengar dan membicarakan kes tersebut akan ditentukan dengan tempat kejadian jenayah itu berlaku.
- pernyataan TEMPAT kejadian jenayah itu berlaku seperti dalam Kertas Pertuduhan akan memberikan suatu bidang kuasa untuk Mahkamah tersebut mendengar dan membicarakan kes tersebut.
EXCEPTION 2 - TWO ACTS DONE AT TWO DIFFERENT PLACES
The law & scope
1) The law:
- S.123
2) Scope:
- may be tried at either.
EXCEPTION 3 - SPECIFIC OFFENCES
Overview
1) The law
2) Escaped detainee
3) Criminal misappropriation of money & CBT
4) Theft & receipt of stolen property
EXCEPTION 3 - SPECIFIC OFFENCES
Escaped detainee
S.124(1)
- where the alleged escape occur; or
- where the detainee apprehended after the alleged escaped.
EXCEPTION 3 - SPECIFIC OFFENCES
Criminal misappropriation of money & CBT
1) The law & scope - S.124(2):
- any part of the property which is the subject of the offence received by the accused; or
- where the offence was committed.
2) application - Dato’ Choo Ching Hwa v PP:
- For CBT, there is a specific provision as provided under s. 124(2);
- The wording of the charge specifically implicates the Temerloh Branch of Malayan Banking Bhd. and at the same time states that is “in the District of Temerloh”; therefore the Temerloh Sessions Court has jurisdiction to try the offence.
EXCEPTION 3 - SPECIFIC OFFENCES
Theft & receipt of stolen property
S.124(3)
- where the property is stolen or was possessed by the thief;
- where any person who received the property knowing it stolen.
EXCEPTION 4 - UNCERTAIN SCENE
The law & scope
1) The law:
- S.125
2) Scope:
- may be tried by a court having jurisdiction over any of such local areas.
EXCEPTION 5 - OFFENCE COMMITTED ON A JOURNEY
Overview
1) The law & scope
2) Meaning of journey
3) Application & examples
EXCEPTION 5 - OFFENCE COMMITTED ON A JOURNEY
The law & scope
1) The law:
- S.126
2) Scope:
- may be tried where the offence was committed passed in the course of the journey.
EXCEPTION 5 - OFFENCE COMMITTED ON A JOURNEY
Meaning of journey
Bapu Daldi v The Queen:
- do not include a voyage in the high seas or in foreign territory.
EXCEPTION 5 - OFFENCE COMMITTED ON A JOURNEY
Application & examples
1) Lee Szu Yin v PP:
- Since the actus reus took place in SG, Magistrate’s court at JHB has no jurisdiction to try the accused.
- Ref. McLeod v AG for NSW:
The jurisdiction of a crime belongs to the country where the crime is committed.
2) Yong Nam Seng v PP:
- The act of signing a declaration in SG and presenting it at JHB was a continuous act culminating in the act being committed within the jurisdiction.
- The court distinguish Lee Szu Yin as the accused there was not responsible for the declaration of the goods in JHB.
3) Loh Ah Hoo v PP:
- The accused was responsible for preparatory acts in SG and those acts culminated within jurisdiction when the goods and the declaration reached the customs at JHB.
- Therefore, the act was committed within the jurisdiction.
- Even if a person runs from outside the jurisdiction to within the jurisdiction, then the person is liable to be tried in Malaysia.
POWERS OF HIGH COURT
In the issue of jurisdiction
1) S.127: to inquire & decide which court to try the offence where doubt arises.
* Application - PP v Rajappan:
- PP applied to HC under S.127 to determine whether Magistrates’ court had jurisdiction to try the offence of bigamy committed outside Malaysia.
- It was held (then) that the Magistrate has no jurisdiction to try the offence of bigamy committed outside Malaysia.
2) S.417: to call & transfer the case.
* Application - Ong Keng Seng v PP:
- power to transfer cases under this section should be exercised only if it appears to the court that failure to transfer will result in unfair trial.
POWERS OF PP
In the issue of jurisdiction
1) To issue certificate of transfer:
- S.418A
2) Application - Abdul Ghani bin Ali v PP (FC, 2001):
- In S.418A, PP’s certificate would effect a transfer of a case pending in sub-courts to a HC;
- Thereafter, the trial is to be conducted within the procedure for HC trials.
