Chapter 13 - Preliminaries in High Court Trials

Question 1

PRELIMINARIES IN HIGH COURT TRIAL

Overview

Answer 1

1) Preliminary objections

2) Preliminary application

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

PRELIMINARY OBJECTIONS

Impartiality of presiding judicial officer - overview

Answer 9

1) The law & scope
2) The test
3) Example of 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
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 adjournment

Answer 17

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 18

PRELIMINARY APPLICATIONS

Example of adjournment

Answer 18

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 19

PRELIMINARY APPLICATIONS

Application for medical observation

Answer 19

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 20

PRELIMINARY APPLICATIONS

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

Answer 20

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 21

PRELIMINARY APPLICATIONS

Application for gag order

Answer 21

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.