Chapter 12 - Preliminaries in Summary Trials

Question 1

SUMMARY TRIALS

Overview

Answer 1

1) Preliminary objections
2) Preliminary application
3) Trial - prosecution case
4) End of prosecution case
5) Trial - defence case
6) End of defence case
7) Conviction
8) Miscellaneous

Question 2

PRELIMINARY OBJECTIONS

Overview

Answer 2

1) Objection as to jurisdiction
2) Presence or sanction of PP
3) Competency of PO
4) Impartiality of presiding judicial officer
5) Defective charge
6) Plea of autrefois acquit & convict

Question 3

PRELIMINARY OBJECTIONS

Objection as to jurisdiction

Answer 3

Re S Subramaniam:

• No plea shall be taken when court has no jurisdiction.

Question 4

PRELIMINARY OBJECTIONS

Presence of consent or sanction of PP

Answer 4

1) Doctrine of implied consent;

2) Requirement of written consent.

Question 5

PRELIMINARY OBJECTIONS

Competency of PO - overview of issues

Answer 5

1) Whether the PO is competent to conduct
2) Whether written appointment is required
3) Whether written letter of appointment shall be produced

Question 6

COMPETENCY OF PO

Incompetent PO

Answer 6

e. g. REPCO:
- The existence of external statutory provision to authorise a person to conduct prosecution is void & ultra vires of the Federal Constitution.

Question 7

COMPETENCY OF PO

Appointment & production of written letter of appointment

Answer 7

1) Appointment must be written & at the sole discretion - PP - DSAI v PP (CA, 2014):

• The appointment must be a written appointment.
• Appointment of a private practitioner is at the sole discretion of the PP and no other body can usurp that prerogative vested in PP, including the Bar Council.

2) Production of letter of appointment - PP v Najib Razak (CA):

• it was the duty of the AG to produce the letter of appointment when such a request has been made and not only when a specific challenge to that appointment has been mounted by the appellant;
• an accused has the right to know, from the start of the proceedings, that his prosecutor is the one who has been validly appointed under s. 379 of the CPC.

Question 8

COMPETENCY OF PO

Application to object

Answer 8

1) whether the court has the power - PP v DSAI (No. 3):

• The court does not have the power to discharge a prosecutor from further prosecuting in a case.
• Application to review the appointment of PP must be made to AG & not the court.

2) Burden of applicant - DSAI v PP (CA, 2014):

• The applicant bears the burden to establish with specificity a violation of one or more of the Rules.
• Mere allegation of unethical conduct or evidence showing a remote possibility of violation of the Rules will not suffice.
• A disqualification may be ordered only if the court determines that a lawyer’s continued participation as counsel taints the judicial system.

Question 9

IMPARTIALITY OF PRESIDING JUDICIAL OFFICER

Overview

Answer 9

1) The law & scope
2) The test
3) Example of non-impartiality

Question 10

IMPARTIALITY OF PRESIDING JUDICIAL OFFICER

The law & scope

Answer 10

1) The law:
- S.349
2) Scope:
- Magistrate shall not try any case to or in which he is a party or personally interested.

Question 11

IMPARTIALITY OF PRESIDING JUDICIAL OFFICER

The test

Answer 11

REAL DANGER OF BIAS

1) Metropolitan Properties Co v Lennon:

• the court does not look at the mind of the judge himself;
• the court looks at the impression which would be given to other people;
• even if he was impartial as he could be, if right minded persons would think that in the circumstances there was a ‘real likelihood’ of bias on his part, then he should not sit.
  If he does sit, his decision cannot stand.

2) Ex Parte Pinochet Ugarte (No. 2):

• Where a possible disqualification of the judge does not involve his proprietary or financial interest in the outcome of the case, the only consideration is apparent bias.
• In an apparent bias situation, the judge is not in any way a party to the proceeding but in some way his conduct or behaviour may give rise to a suspicion that he is not impartial.
• For example, his friendship with a party.

3) Maleb bin Su v PP:

• If bias is alleged, then there must be proved a real likelihood of the bias or real danger of bias;
• reasonable suspicion of bias & bare allegations of bias is insufficient.

Question 12

IMPARTIALITY OF PRESIDING JUDICIAL OFFICER

Examples of impartiality

Answer 12

1) Witness previously tried - PP v Lau Tuck Weng:

• The judge decided to disqualify himself from hearing the case;
• This is because the defence was likely to call a witness whom he had tried previously and had made adverse comments on his credibility.

2) Family member - PP v Mohamed Ghazali Ibrahim:

• the Magistrate purported to admonish or discharge his own brother who was charged for two offences under Road Transport Act.
• HC set aside the discharge order & order a re-trial before a different Magistrate.

Question 13

PRELIMINARY OBJECTIONS

Defective charge

Answer 13

Zulkiflee Mohd Dom v PP:

• Section 154 is a general provision while section 156 serves to qualify it.
• Section 154 will render a charge defective if an objection to its non-compliance is taken before the commencement of the trial;
• S.156 will not invalidate such a charge if the objection is taken during or at the conclusion of the trial in the circumstances mentioned in the section.

Question 14

PRELIMINARY OBJECTIONS

Plea of autrefois convict or acquit

Answer 14

1) Plea:
- S.302 CPC & Art. 7(2)
2) Procedures to plead:
- S.303 CPC
3) Whether plea of autrefois convict or acquit exclude estoppel in criminal cases - Sukma Darmawan v PP:

• Pleas of autrefois acquit and convict do not exclude the application of the wider doctrine of issue estoppel to criminal cases.
• Issue estoppel is concerned with the judicial establishment of a proposition of law or fact between parties.

Question 15

PRELIMINARY APPLICATIONS

Overview

Answer 15

1) Further particulars of charge
2) Application for transfer
3) Application for adjournment
4) Application for medical observation
5) Application for gag order

Question 16

PRELIMINARY APPLICATIONS

Further particulars of charge

Answer 16

Application - PP v Raymond Chia & Anor:

• Accused is charged with an offence which the defence requested to be supplied with further particulars in the charge as framed.
• Although the applications were not properly made under s. 51(i) of the Criminal Procedure Code and the order of the learned President must be set aside, HC exercised power of revision and allow the first part of the discovery order to remain;
• This is on the ground that the respondents were entitled to further and better particulars of the charge to enable them to prepare their defence and give instructions to their Counsel.

Question 17

PRELIMINARY APPLICATIONS

Application for transfer

Answer 17

1) Transfer to High Court - S.177:
- Application can be made by PP.
2) Transfer is then becomes mandatory - Raja Petra v Pendakwa Raya:
- Although S.177 does not mention any circumstances enabling the prosecutor to apply for transfer, when an application is made by PP, the Magistrate shall stay proceedings and transfer case to a higher court.
2) Application for order of transfer by HC - S.417:
- Application can be made by PP or accused.

Question 18

PRELIMINARY APPLICATIONS

Application for adjournment

Answer 18

1) The law:
- S.259
2) Discretion to grant - PP v Tanggaah:

• has to be exercised judicially.
• trial court can only adjourn a trial where: (1) witnesses are absent, (2) any reasonable cause.
• reasons for adjournment must be clearly expressed and recorded.

3) Considerations for adjournment - Tan Foo Soo v PP:

• what constitutes reasonable cause to justify grounds of adjournment will depend on the facts and circumstances of each case.
• PD No. 1 2008 lays down factors to be taken into account.

4) Considerations for adjournment - factors to be taken into account - PD 1/2008:
- accused is entitled to be defended by counsel of his choice.
- lawyer attending seminar or course = not a good reason.
- lawyer suddenly falls ill = a good reason; must tender medical certificate.
- application for adjournment made first time = not a good reason = who cares?
- lawyer involved in another court, i.e. higher court = not a good reason.

5) Adjournment for interlocutory application - Najib Razak v PP:
- An expeditious disposal of interlocutory matters especially in criminal matters must also feature in the consideration of the learned judge.
6) last minute adjournment - CJC July 2009:

• the court should reject a last minute adjournment.
• when a witness is present in court, he must be examined on that day.
• once an examination of witness has started, the court has to continue the trial from day to day until all witness in attendance have been examine.
• the court must record reasons for deviating from this course of carrying out proceedings.

7) Adjournment & reasoning must be recorded - S.176(2)(o):
- date of each adjournment & grounds for making adjournment must shall be recorded.

Question 19

PRELIMINARY APPLICATIONS

Example of adjournment

Answer 19

1) illness - Mohd Ekram v PP:

• where the accused or witness is unable to attend court due to illness, it would be reasonable to grant adjournment.
• BUT medical certificate must be tendered.

2) Appeal before superior court - Sharma Kumari v PP:
- Personal problems of counsel having too many commitments should not be a ground to request for an adjournment.
3) New counsel replaced - Awaluddin bin Suratman v PP:
- When a new counsel is retained, a short adjournment will further interest the justice as the new counsel may need to prepare notes of evidence properly.
4) Adjournment for new counsel retained - Ogbodo Sunday Tochukwan v PP & other appeals (CA, 2016):

• This ground of application based on he is newly retained appeared to be a valid ground.
• Considering the serious nature of the charge levelled against the second accused which carries the mandatory death penalty, there is no injury to the justice system if the learned trial judge had granted the adjournment.

Question 20

PRELIMINARY APPLICATIONS

Application for medical observation

Answer 20

1) The law:
- S.342
2) Scope of S.342 - Hamzah bin Osman v PP:

• S.342 & 343 are concerned with the mental state of mind of the accused at the time of the plea.
• They protect an accused who is suspected of being of unsound mind and would be incapable of understanding the nature of the charges against him and the meaning and import of evidence adduced against him.

3) Rationale for S.342 - Hamzah bin Osman v PP:
- Rationale is that the mental state of the accused renders him incapable of making his defence thereby reducing his presence at the proceedings to a nullity.

4) Applicability of S.342 -
Hamzah bin Osman v PP:

• The sections do not apply to a situation where the accused is going to rely on a plea of insanity as a defence at the time of the commission of the offence.
• The basis for the finding of the soundness or otherwise of the accused to plead must be the certificate to state whether the appellant was fit to stand trial.

5) Must have reasons to suspect before ordering medical observation - Junaidi Bambang v PP:

• The learned trial judge, after asking questions and evaluating the answers given by the accused, was satisfied that the accused could answer the questions posed to him well and he had a good memory.
• It did not appear to the learned trial judge that the appellant was of unsound mind and was incapable of making his defence.
• That was the reason given by the learned trial judge in dismissing the appellant’s application under s. 342 of the CPC & it was justified.

Question 21

PRELIMINARY APPLICATIONS

Application for medical observation - non-compliance with S.343

Answer 21

Hamzah bin Osman v PP:

• Non-compliance of s. 343(1) of the CPC after a reference was made by the High Court under s. 342(1) rendered the trial a nullity.
• The statutory injunctions in ss. 342(1) and 343 are sacrosanct to the fundamental right of the accused in the criminal justice system to avail himself of the right to ensure that he is, in law, fit to plead and understand the consequence of proceedings against him.
• These are mandatory provisions and non-compliance of the same would render a trial a nullity.

Question 22

PRELIMINARY APPLICATIONS

Application for gag order

Answer 22

PP v Najib Razak:

• A gag order is a form of a prior restraint.
• The considerations for the granting of a gag order are not the same as those to establish whether the matter is subjudice.
• The gag order must be shown to be necessary to prevent an immediate threat of a real and substantial risk of serious prejudice to the administration of justice in the relevant proceedings in the absence of alternative measures, and is proportionate in reference to the competing interests of free speech and risk of prejudice to a fair trial.
• OTF, other remedies are available to the accused, making the gag order unnecessary as contempt laws and defamation laws can be resorted to.
• The gag order is also difficult to sustain as it is targeted to the world at large, and the application proposes a scope significantly wider than what has been affirmed in the accompanying affidavit in support.

Question 23

CHARGE IN SUMMARY TRIAL

Overview

Answer 23

1) Reading charge
2) Notice of alibi at the time of reading charge
3) Pleading guilty to the charge
4) Refuse to plead / does not plead / claim to be tried

Question 24

READING CHARGE IN SUMMARY TRIAL

Overview

Answer 24

1) The law on reading charge
2) The need of interpreter
3) Explanation of the charge
4) Joint charge for multiple accused persons
5) Multiple charges for an accused

Question 25

READING CHARGE IN SUMMARY TRIAL

The law on reading charge

Answer 25

S.173(a)

Question 26

READING CHARGE IN SUMMARY TRIAL

The need of interpreter

Answer 26

1) Requirement for interpreter - Fong Hung Sium v PP:

• where the charge is in the language which the accused does not understand, an interpreter will be engaged to translate the charge.
• he should be sworn unless he is certified interpreter under government and is engaging in the performance of his duties.

2) Duty of an interpreter - Huang Chin Siu v R:

• duty of the interpreter is to make sure he and the accused understand one another;
• and inform the court if there is any difference in language which might cause any difficulty.

Question 27

READING CHARGE IN SUMMARY TRIAL

Explanation of the charge

Answer 27

1) Whether explanation is required - Low Hiong Boon v PP:

• Required when the charge is difficult & technical in nature;
• And the accused is not represented.

2) Represented accused - Jiva Gopal Krishnan v PP (CA, 2014)
- the omission to read and explain the charge to the appellant did not cause any miscarriage of justice nor cause confusion;

Question 28

READING CHARGE IN SUMMARY TRIAL

Joint charge for multiple accused

Answer 28

1) Procedures for multiple accused - Subramaniam & Anor v PP:

• Charge must be read & explained to the accused persons separately.
• Their pleas must be recorded separately.

2) Effect of joint plea of guilty - Fong Siew Poh & Three Ors v PP:
- A conviction based on a joint plea of guilty by two or more accused persons is bad & irregular.
3) One or more accused pleaded guilty - Yap See Teck v PP:

• Enquiry:
• Yes:
• No:

Question 29

READING CHARGE IN SUMMARY TRIAL

Multiple charges on one accused

Answer 29

R v Boyle:

• An accused should be asked to plead on separate count;
• Each count should be put separately to the prisoner, whether he is defended or not;
• This applies not only to counts that are different in nature, but also when there are alternative counts.

Question 30

NOTICE OF ALIBI

The law & scope

Answer 30

1) The law:
- S.402A
2) Scope:

• the court is under a duty to inform the accused on his right to put a defence of alibi.
• it is mandatory where it is apparent from the charge & circumstances disclosed that the defence of alibi could be raised as a possible defence.

3) Notice of alibi - S.402A(2)
- if the accused seeks to rely on alibi, he shall put forward the notice of alibi during case management.
4) Rationale for notice - Vasan Singh v PP:
- The primary purpose of an alibi notice is to alert the prosecution to the fact that an alibi might be relied upon so that they may have the opportunity before the trial of making such investigations as they think fit.
5) Whether mandatory:
- Ku Lip See v PP (CA): The requisite notice under S.402A is mandatory.
- Theenesh Gunasegaran & Anor v PP (CA, 2019): Such a notice is mandatory.
6) Failure to give notice under S.402A:

• Rangapula v PP: Where there was a failure to give the requisite notice, the accused was precluded from leading evidence of alibi;
  And the court cannot consider the evidence adduced.
• cf. Pendakwa Raya v Arumugam a/l Muniancy & Ors (CA, 2018): Evidence of alibi should be admitted regardless when it does not surprise or otherwise prejudice the prosecution’s case.
  7) Notice given after adjournment - PR v Muslim bin Ahmad:
• As long as notice of alibi is served before commencement of trial, it is valid.
• The commencement of the trial meant the commencement of the actual trial and not the date when the accused was first charged in court.

Question 31

PLEADING GUILTY IN SUMMARY TRIALS

Overview

Answer 31

1) The law & scope
2) Plea must be 3U’s
3) Example & effect of non-3U’s pleas
4) Statement of brief facts
5) Made by the accused
6) Doubtful plea
7) Pleading guilty by letter
8) Withdrawal of plea
9) Effect of pleading guilty

Question 32

PLEADING GUILTY IN SUMMARY TRIALS

Plea must be 3U’s

Answer 32

1) The law:
- Proviso to S.173(b)

2) Scope - PP v Cheah Chooi Chuan:
It is a cardinal principle that any plea of guilty must be completely unreserved, unqualified and unequivocal.

3) Duty of court - Mohammad bin Hassan v. PP:

• A plea of guilty is recorded when the accused pleads guilty after the charge has been read and explained to him.
• The court only accepts the plea when it is satisfied that the accused understands the nature and consequences of his plea.
• This will be done after the accused has admitted the facts.

4) Complicated charges - PP v Margarita B Cruz:
- Magistrate must ensure that the accused was properly explained of the charge and the consequences of pleading guilty.

Question 33

PLEADING GUILTY IN SUMMARY TRIALS

Example & effect of non-3U’s guilty plea

Answer 33

1) PP v Cheah Chooi Chuan:

• OTF, the accused intended to plead guilty after his challenge to the complainant was taken up.
• this does not amount to 3U’s.

2) PP v Yusoff:

• Found in possession of keris which actually been earlier borrowed by his friend during a bersanding ceremony.
• Conviction quashed.

3) Munandu v PP:

• At the trial the accused who was unrepresented was told the charge was for a minor case and his job would not be affected if he pleaded guilty.
• The accused pleaded guilty & stated that ‘saya sedang mabuk pada waktu kejadian. tersilap ambil basikal’ in mitigation.
• Conviction quashed; retrial ordered.

Question 34

PLEADING GUILTY IN SUMMARY TRIALS

Statement of brief facts

Answer 34

1) Object of brief facts - Mohammad bin Hassan v PP:

• to ensure that the accused UNCP and intends to admit w/o qualification.
• enables the court to form an opinion on the conduct of the accused in assessing the sentence.

2) Scope of brief facts - Lian Kian Boon v PP:

• should be confined to facts which the prosecution is able to prove & necessary to establish the charge.
• controversial facts & likely to be disputed should not be included.

3) Soon Tiew Choon v PP:
- the brief facts given by the prosecuting officer must reflect the true and essential elements in the charge.
4) Whether the accused has to agree to everything in brief facts - Mohammad bin Hassan v PP:

• It is not essential that the accused should admit every iota of facts given by the prosecution.
• If what he admits contains all the ingredients of the offence and what he disputes or does not admit is irrelevant or immaterial to the offence, it is is sufficient.
• If the facts admitted to do not constitute the offence charged, the magistrate will then have to consider whether to discharge the accused or enter a plea of not guilty and proceed to trial.
• Court cannot acquit the accused if the facts do not disclose an offence

Question 35

PLEADING GUILTY IN SUMMARY TRIALS

Made by the accused

Answer 35

1) Not through counsel - R v Tan Thian Chai:

• plea must be made by the accused himself and not through his counsel to avoid any subsequent dispute.
• “an accused must plead guilty, or claim to be tried, by his own mouth and not through his Counsel”.

2) cf. Chin Ban Keat v R:
- although it is undesirable, the essence of it is that the court shall be satisfied that the accused UNCP & intends to admit w/o qualification.
3) Whether insane accused can plead - PP v Nageswari:

• Magistrate ought to not accept the plea and proceed to trial.
• the appropriate recourse would be for trial magistrate to reject such plea & order for trial, not to acquit the accused simply because the statement of brief facts did not disclose any offence.

Question 36

PLEADING GUILTY IN SUMMARY TRIALS

Pleading guilty by letter

Answer 36

1) The law:
- S.137 (only for offence laid down thereof)
2) Scope - Azmy Ariff v PP

• Section 137(ii) provides in clear terms that an accused person “desiring to plead guilty and be convicted and sentenced in his absence” may by letter addressed to the Magistrate plead guilty;
• Magistrate may thereupon record a plea of guilty and convict him according to law.

Question 37

PLEADING GUILTY IN SUMMARY TRIALS

Withdrawal of plea

Answer 37

1) Discretion of the court - Abdul Mormin v PP:
- it is the discretion of the court to allow a plea of guilty to be withdrawn.
2) When the court is functus officio - PP v Jamalul Khair:
- The court only becomes functus officio upon passing the sentence.
3) Whether court can entertain withdrawal of plea - Lee Weng Tuck v PP:

• Since the court only becomes functus officio after passing sentence, a judge can entertain application to retract plea of guilt any time before case is finally dispose off.
• Power to allow plea to be retracted must be exercised judicially and on valid grounds.

4) Whether the court can allow plea to be withdrawn before facts are given - Yeoh Eng Hock v PP:

• It is a usual practice to allow withdrawal of plea where the plea of guilt have been made out before facts have been given.
• An accused person needs to refuse to admit to the facts.

5) Whether court can allow plea to be withdrawn after functus officio - Wong Siew Yeow v PP:

• When the court is functus officio (i.e. after passing the sentence), he cannot permit the guilty plea to be withdrawn;
• Therefore, the only recourse available is by way of revision since appealing against conviction for the accused who has pleaded guilty is not allowed. (S. 305, Mohd Dalhar Redzuan v PP).

Question 38

PLEADING GUILTY IN SUMMARY TRIALS

Effect of pleading guilty on right to appeal

Answer 38

1) The law:
- S.305
2) Scope:
- can only appeal on the legality & extent of sentence.

3) Application - Mohammad bin Hassan v PP:
Section 305 of the Criminal Procedure Code provides that a person who has been convicted on his plea of guilt is entitled to appeal only against the extent or legality of the sentence.
However, once such an appeal has been lodged, there is nothing to prevent an appellant from contending at the hearing that the conviction is illegal and therefore request the Court to act in revision.
The Court is entitled to and will, where appropriate, act in revision and set aside a conviction.
Mohd Dalhar bin Redzuan v Datok Bandar KL:
However, once an appeal is lodged, it was however open to HC to intervene by exercising its revisionary power & set aside a conviction.
appellant ought to give the court and the PP adequate notice; setting the grounds on which revision will be sought.
Abdul Halik bin Ali v SPRM:
An accused who has pleaded guilty is not entitled as of right to appeal against his conviction;
The court’s revisionary powers could be exercised if there was a reason to find that the plea should not have been accepted.

Question 39

PLEADING GUILTY IN SUMMARY TRIALS

Refuse to plead or does not plead or claim to be tried

Answer 39

1) The law:
- S.173(c)
2) Scope:
- When the accused claim trial, trial should proceed.
3) Accused refuse/does not plead:

• Chapter XXXIII;
• i.e. may send for medical observation

4) No acquittal or discharge without hearing evidence - Soon Tiew Choon v PP:
- without hearing evidence it is not open to the magistrate to acquit.
5) Whether Magistrate or SCJ may dismiss a charge without hearing evidence - Kuppusamy & Ors v PP:

• There is no circumstances which permit a Magistrate to “dismiss” a charge.
• The earliest stage at which a Magistrate can acquit an accused person is after hearing all the evidence for the prosecution.