Chapter 12.2 - Miscellaneous in Summary Trials

Question 1

MISCELLANEOUS IN SUMMARY TRIAL

Overview

Answer 1

1) View of place or locus in quo
2) Proceedings instituted via complaints
3) Record of proceedings by mechanical means
4) Disposal of exhibits
5) Alibi
6) Discharge without hearing evidence
7) Inability of presiding judicial officer to continue with trial
8) Impeachment proceedings
9) Where the accused did not understand the proceedings
10) Prosecutor declines to prosecute further
11) Powers of court to discharge at any stage
12) Adjournment of trial

Question 2

MISCELLANEOUS IN SUMMARY TRIAL

View of place or locus in quo - the law & scope

Answer 2

1) Whether permitted - R v Lee Ah Phua:

• Although there is no express statutory authority for holding a view in criminal cases except S.208 which only deals with trials by jury (now repealed), it it is not illegal for Magistrates and District Judges to visit the locus in quo concerned in any case which they have to try.
• A view should take place only after the hearing has begun.
• Its scope should be limited to an examination of the place & for the purpose of identification of the site and this is preferably by a person already sworn as a witness.

2) Purpose of locus in quo - PP v Rames Arumugam:

• Accused was charged for murder.
• The Court visited the scene of crime to ascertain the exact perspective of the area where the incident occurred.
• It gave the Court understanding of the lighting conditions and the crucial points raised during the trial.

Question 3

VIEW OF PLACE OR LOCUS IN QUO

Non-compliance with guidelines

Answer 3

Olivia Chong Oi Yun v PP:

• locus in quo was not conducted according to guidelines & there was no record of questions posed to the witnesses but merely short notes of what was said and no cross-examination to witnesses during the locus in quo.
  Held:
• Even though there were no questions asked to the accused taken during the visit, there were notes taken by the SCJ to record what he observed based on the evidence of the witnesses at the scene during the visit as appearing in the notes of proceeding.
• The conduct of locus in quo should be left at the discretion of the presiding trial judge.
• As long as the interest of the accused was safeguarded and if there was a new matter or new evidence that may arise at the scene, the parties were at liberty to examine and cross examine the same on their return to the court room.

Question 4

MISCELLANEOUS IN SUMMARY TRIAL

Proceedings instituted via complaints

Answer 4

1) The law:
- S.173(n) & (o)
2) Compounding offences:

• S.260
• Column 6, First Schedule

Question 5

MISCELLANEOUS IN SUMMARY TRIAL

Record of proceedings by mechanical means

Answer 5

1) The law:
- S.272C - S.272K
2) Discrepancies between notes of proceedings & court recording transcript - Abdol Rahim Zamani Mohammad v PP (CA, 2015)

• Under s. 272F, the mechanically recorded proceedings may be transcribed by a person authorised by the judge.
• Once the transcriber produced the record, the judge shall ascertain the accuracy and reliability of the transcription.
• There cannot be two different sets of record of proceedings.
• Be it by an electronic device or hand written recording, the trial judge remains responsible for the accuracy of the notes of proceedings before him.
• The failure of the judge to ensure the accuracy of the recording had prejudiced the appellant’s case and the failure was a breach of the provision under s. 272F of the CPC.
• However, although a misdirection had occurred, it was not in itself a sufficient ground to justify interference with the verdict.

Question 6

MISCELLANEOUS IN SUMMARY TRIAL

Disposal of exhibits

Answer 6

1) The law:
- Chapter 41 CPC
2) Order for disposal of property related to the crime:
- S.407 CPC
3) Application - Ooi Chin Seng v PP:
- Section 407 of the Criminal Procedure Code is a general provision relating to the order for disposal of property regarding which an offence has been committed.
4) Application for return of property:
- S.413 CPC
5) Scope of S.413 - Hong Leong Bank Bhd v PP:
- Under S.413, Magistrate has to consider:

*ENTITLEMENT:
who is entitled to the possession of the property at the time it was seized.

*LAST POSSESSION:
where it appears that police has seized the property from a person who has not been shown to have committed any offence with regards to the property, the Magistrate may order it to be returned to the person last in possession.

*TITLE OR OWNERSHIP:
The issue of title or ownership is to be determined by the civil court.

6) Whether order under S.413 is appealable - SKI Leasing Sdn Bhd v PP & Ors:

• Orders under S.413 is appealable.
• The order of the Magistrate & HC judge pertaining to the return of the property is a final order and thus gives statutory right to appeal.

Question 7

MISCELLANEOUS IN SUMMARY TRIAL

Alibi - overview

Answer 7

1) Alibi 101
2) Law & scope
3) Notice of alibi
4) Standard & burden of proof for alibi
5) Abandonment of defence of alibi

Question 8

ALIBI

Meaning & evidential value of alibi

FC, 2013

Answer 8

Duis Akim & Ors v PP:

1) Meaning of alibi:
- Defence of alibi must preclude the possibility that the accused could have been physically present at the place of the crime or its vicinity at or about the time of its commission.
2) Evidential value of alibi:

• Alibi must be considered in the light of totality of the evidence & court’s impression of the witnesses.
• From that totality, decide whether the alibi might reasonably be true.
• Once the trial court accepted that the alibi evidence could not be rejected as false, it was not entitled to reject it on the basis that the prosecution had placed before it strong evidence linking the appellant to the offences.
• The acceptance of the prosecution’s evidence could not, by itself alone, be a sufficient basis for rejecting the alibi evidence.

Question 9

ALIBI

Law & scope

Answer 9

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.

Question 10

ALIBI

Notice of alibi

Answer 10

1) 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.
2) 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.
3) 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.
4) 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.
  5) 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 11

ALIBI

Standard & burden of proof for alibi

FC, 2013

Answer 11

Duis Akim & Ors v PP:

1) Burden of proof:

• Once an accused pleads an alibi, he does not assume the burden to prove it is true.
• Onus is on the prosecution to prove by evidence the alibi is false & to place the accused squarely at the scene of crime.

2) Standard of proof:
- The evidence of his alibi need only raise a reasonable doubt that he committed the crime.
3) Whether needs corroboration:
- The alibi of an accused does not have to be corroborated by independent evidence in order to raise a defence.

Question 12

ALIBI

Abandonment of defence of alibi

Answer 12

1) General rule - DSAI v PR (FC, 2015):
- No inference can be drawn against an accused person for the abandonment.
2) Exception - Choo Chang Teik & Anor v. PP:

• Upon rebuttal evidence having been adduced, the law has cast the burden on the accused to prove his own contention by the evidence of his friend at whose house he was seen beaten.
• Failure to prove will warrant an adverse inference.

Question 13

INABILITY OF PRESIDING JUDICIAL OFFICER TO CONTINUE WITH TRIAL

The law & scope

Answer 13

1) The law:
- S.261
2) Scope - Yap You Jee v PP:
- When SCJ or Magistrate becomes unable to continue with the trial, the new SCJ or Magistrate is conferred with discretion to either continue hearing case from where it is left or to hear from the beginning (de novo).
3) Scope - PP v Goh Chooi Guan:
- Ref. S.261: when the SCJ or Magistrate is transferred to other state, the succeeding Sessions Judge has a complete discretion to either hear the case de novo or to continue from the point where it has been left by the previous Sessions Judge.

Question 14

INABILITY OF PRESIDING JUDICIAL OFFICER TO CONTINUE WITH TRIAL

Meaning & scope of cease to exercise jurisdiction

Answer 14

PP v Goh Chooi Guan:

1) Transfer to different place or district:

• Do not cease to exercise jurisdiction.
• Can apply to continue to hear the part heard case.

2) Transfer to the post of Senior Federal Counsel or Deputy Public Prosecutor:

• Do not ceases to have jurisdiction, can apply continue to hear part-heard case.
• However, observe the likelihood of bias when he is transferred to the post of DPP.
• When he or she became the DPP, there was a likelihood of bias and the accused may be prejudiced.
• The accused may apply to disqualify the judge (which is now a DPP) from hearing the case.

3) Death, resignation or retirement:

• A Magistrate ceases to have jurisdiction in a criminal case by his untimely death, retirement or resignation.
• In such a case, S.260 will apply.

Question 15

INABILITY OF PRESIDING JUDICIAL OFFICER TO CONTINUE WITH TRIAL

De novo or where it has been left?

Answer 15

1) Gunasekaran Buchia v Pendakwaya Raya:

General rule:

• de novo, i.e. hearing it from beginning.

Exception:

• continue hearing part-heard case, only in exceptional circumstances.

Example of exceptional circumstances:

• Evidence given is merely formal;
• Evidence given is not controversial in nature;
• Credibility of witness was not questioned.

2) Recent - Recent - Lai Weng Keat v PP (FC, 2016): )

• Can be heard & continued from where it is left where the facts of the case are straightforward and the credibility of the witnesses are not crucial.
• H/ever, must hear de novo if the the demeanour and credibility of the witnesses who had given evidence earlier are crucial or becomes an issue.
• Apart from hearing de novo, can also recall the relevant witnesses to ensure that the succeeding Magistrate or Judge is able to assess personally the demeanour and credibility of the relevant witnesses.

Question 16

INABILITY OF PRESIDING JUDICIAL OFFICER TO CONTINUE WITH TRIAL

Recent case

Answer 16

Yap You Jee v PP (CA, 2015):

• S.261 does not apply in the case of transfer of the Magistrate to another state.
• Where a Magistrate or a Sessions Judge has been transferred to another state, he retains the jurisdiction in the matter and he may continue and complete the cases that he has heard partly.
• However, to save time and money and to expedite the disposal of part-heard cases, instead of hearing de novo, the succeeding Magistrate or Sessions Judge may continue the trial from where the predecessor left, instead of de novo.
• It has been a practice for the Chief Judge or the Chief Registrar to decide on whether the part-heard cases would be completed either by the previous presiding Magistrate or Sessions Judge or by his successor;
• This decision or ‘directive’ was purely administrative, given with the primary purpose to speed up the disposal of the part heard cases.
• The “directive” which was given administratively could not and did not fetter the discretion of the succeeding Magistrate or Sessions Judge provided for under s. 261.

Question 17

MISCELLANEOUS IN SUMMARY TRIAL

Impeachment proceedings

Answer 17

1) The law:

• S.155 EA
• S.145 EA

2) Scope - Pathmanabhan Nalliannen v PP:

By virtue of S.155, the credit of a witness may be impeached by:

• Evidence from other persons;
• Proof that the witness has been bribed;
• Proof of inconsistent former statements made by him.

S.145(1) provides that:

• a witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined, without the writing being shown to him or being proved;
• but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

Question 18

MISCELLANEOUS IN SUMMARY TRIAL

Where the accused did not understand the proceedings - the law & scope

Answer 18

1) The law:

• S.258: General procedure where accused does not understand the proceedings.
• S.270: Interpretation of evidence to the accused.

2) Duty of court - general - Re Beda:
- It is a duty of court & obligatory for the court to make the necessary inquiry & endeavours to find out if the accused is can be made to understand the proceedings.
3) Test for breach of S.270 - Fidelis Daniel Enechukwu v PP:
- Test is whether the accused has been denied rights to fair trial

Question 19

WHERE THE ACCUSED DID NOT UNDERSTAND THE PROCEEDINGS UNDER S.258

Example

Answer 19

Muhd Haslam Abdullah v PP:

• By virtue of S.258, it behooves a High Court to assess and ascertain that an OKU accused in able to understand the proceedings and participate meaningfully with the assistance of an assigned counsel.

Question 20

WHERE THE ACCUSED DID NOT UNDERSTAND THE PROCEEDINGS UNDER S.270

Example

Answer 20

Fidelis Daniel Enechukwu v PP:

• The court doubted whether the accused actually understood the proceedings and of what the witnesses were testifying against him in Malay.
• In this regard, it was found that the provisions of s. 270 had been breached.
• The concern of the trial judge that the services of the Nigerian interpreter would have to be paid for by the court was an irrelevant consideration.
• In the circumstances, the accused had been deprived of a fair trial when the evidence of the witnesses was not translated to him.
• Appeal allowed, re-trial ordered.

Question 21

MISCELLANEOUS IN SUMMARY TRIAL

Prosecutor declines to prosecute further - law & scope

Answer 21

1) the law:
- S.254
2) scope - Goh Cheng Chuan v PP:

• Decision of whether or not to prosecute further the accused on the charge is on the PP to make.
• It is then for the Court to decide whether it should direct that the discharge shall amount to an acquittal.

Question 22

PROSECUTOR DECLINES TO PROSECUTE FURTHER

DNAA or DAA?

Answer 22

1) PP v Mat Zain:

• When a charge is withdrawn and the accused is discharged, the discharge should amount to an acquittal;
• This is unless a good cause is shown for otherwise.

2) K Abdul Rasheed v PP:

• Court must bear in mind & give due regard to the right of prosecution to proceed at a later stage;
• Unless some good grounds are shown, it would not be right to leave an individual hanging with the charge in which proceedings are stayed for an indeterminate period;
• Each case has to be dealt with on its merits, with the court bearing mind the public interest & the right of the individual.

3) Koh Teck Chai v PP:

• power to discharge when the discharge is not amounting to acquittal shall be exercised sparingly and grudgingly;
• it should be exercised only where the court is satisfied for good cause shown that the public interest insistently demands that it be used
• unless some very good ground is shown, it would not be right to leave an individual hanging on a charge for indefinite period, i.e. unless some good grounds is shown, discharge should be amounting to an acquittal.

Question 23

MISCELLANEOUS IN SUMMARY TRIAL

Powers of court to discharge - law & scope

Answer 23

1) The law:
- S.173(g)
2) Scope:
- Gives power to court to discharge on the grounds that charge is groundless.
3) Factors to be taken into account:

• Whether the police has completed investigation.
• Whether the attendance of witness can be procured without undue delay.
• Whether the prosecution has a ground to prefer a charge.

4) PP v Zalili bte Mustapha:

Magistrate may only grant discharge under three circumstances:

• When the prosecution declines to prosecute - S.254;
• When the complainant is absent on the day fixed for hearing in a private prosecution initiated under S.133.
• Where the charge is groundless - S.173(g).

Question 24

POWERS OF COURT TO DISCHARGE

Examples

Answer 24

1) Incomplete police investigation - PP v Tan Kim San:

• if police investigation is not complete, the charge is groundless.
• therefore it is appropriate to discharge the accused.

2) Absence of witnesses - PP v LS Pererra:
- Where witnesses cannot be found or traced, it would be a proper exercise of power to adjournment rather than granting DNAA.
3) Absence of witness - cf. PP v David Noordin:

• PP should complete & proceed with the case within a reasonable time;
• If the attendance of the witnesses cannot be procured within reasonable time, even after several adjournments, it would be appropriate to grant such discharge;
• The accused should only be re-arrested, if at all, when the prosecution is in position to proceed with the trial.

4) Old case - PP v Zalili bte Mustapha:

• The fact that it is an old case, by itself, cannot render a charge groundless;
• Police investigation completed - postponement.
• Police investigation is yet to be completed - DNAA.

Question 25

ADJOURNMENT OF TRIAL

The law & scope

Answer 25

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 26

ADJOURNMENT OF TRIAL

Examples of adjournment

Answer 26

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.