Chapter 13.1 - High Court Trials

Question 1

HIGH COURT TRIAL

Overview

Answer 1

1) Preliminaries
2) Trial at High Court
3) Miscellaneous at High Court Trial

Question 2

PRELIMINARIES OF HIGH COURT TRIAL

Overview

Answer 2

1) Production at subordinate courts
2) Transmission of cases from subordinate court
3) Transfer of cases to High Court

Question 3

PRELIMINARIES OF HIGH COURT TRIAL

Production at subordinate courts

Answer 3

1) Production - PP v Darkasyi:

• accused shall be produced before the appropriate subordinate court;
• usually MC, but can also be SC.
• charge will be read to him but no plea shall be taken.

2) No plea shall be taken - Lee Chan Sang v PP:

• MC/SC has no power to take a plea from the accused;
• Or acquit the accused when the prosecution decides not to prosecute the accused.

Question 4

PRELIMINARIES OF HIGH COURT TRIAL

Transmission of cases from subordinate court

Answer 4

1) Under CPC:
- S.177A
2) Issue for transmission under CPC:
- whether consent is required: An Kee Cheng v PP
- how soon should a case be transmitted: PP v Marwan Ismail & PP v Mohd Toha M Yusuf & Ors

• whether Mag / SCJ has
  discretion not to transmit: PP v Tiong King Guan, PP v. Toha M Yusuf & Ors; PP v. Thayalan Maniam.
• whether has the power to grant DNAA pending consent: PP v Mohd Shaifuldin bin Khairudin
  3) Transmission under DDA:
• S.41A
  4) Issue for transmission under DDA:
• whether consent is required (offence triable exclusively in HC): Oladotun Lukmaru Umaru v PP cf. PP v Toha M Yusuf & Ors cf. Marwan Ismail v PP;
• whether consent is required (offence required by PP to be tried in HC);
• how soon should a case be transmitted: PP v Marwan Ismail & PP v Mohd Toha M Yusuf & Ors
• whether Mag / SCJ has discretion not to transmit: PP v Tiong King Guan, PP v. Toha M Yusuf & Ors; PP v. Thayalan Maniam.
• whether has the power to grant DNAA pending consent: PP v Mohd Shaifuldin bin Khairudin

Question 5

PRELIMINARIES OF HIGH COURT TRIAL

Transfer of cases to High Court

Answer 5

1) From subordinate courts:

• S.177:
• S.417(bb) & (cc) & S.418:

2) To specific High Court:
- S.418A & 418B
3) Issue - whether lower courts have the discretion to refuse transfer?

Question 6

PROSECUTION CASE AT HIGH COURT

Overview

Answer 6

1) Opening statement for prosecution
2) Examination of witness
3) Close of prosecution case

Question 7

COMMENCEMENT OF TRIAL AT HIGH COURT

Brought or appear before the High Court

Answer 7

1) The law:

S.178(1):

2) Scope:

• Via transmission: S.177A or S.41A DDA
• Via transfer: S.177, 417 or 418A

Question 8

COMMENCEMENT OF TRIAL AT HIGH COURT

Reading charge at High Court

Answer 8

1) The law on reading charge
- S.178(1)
2) The need of interpreter:

• Fong Hung Sium v PP:
• Huang Chin Siu v R:

3) Explanation of the charge:

• Low Hiong Boon v PP
• Jiva Gopal Krishnan v PP (CA, 2014)

4) Joint charge for multiple accused persons:

• Subramaniam & Anor v PP;
• Fong Siew Poh & Three Ors v PP;
• Yap See Teck v PP:

5) Multiple charges on one accused:
- R v Boyle

Question 9

COMMENCEMENT OF TRIAL AT HIGH COURT

Pleading guilty to capital offence

Answer 9

1) The law:
- S.178(2)
2) Whether allowed - Lee Weng Tuck & Anor v PP:

• there is nothing in the CPC that prevents a judge from accepting a plea of guilty in capital cases;
• this is so provided that proper safeguards were taken, i.e. UNCP & 3 Us.

3) Procedural requirements in taking plea - Tang Hee Hing v PP:

• All procedural requirements under summary trials shall apply;
• i.e. brief facts.

4) Accused must plead by himself - R v Tan Thian Chai:

• the court must ensure that it is the accused himself who wishes to PG.
• An accused person should PG or CT through his own mouth & not through his counsel.

5) Safeguards in accepting the plea - Koh Mui Keow v R:

• each ingredient and each question involved should be explained by the to the accused;
• there must be some indication on the record that the accused knows the nature of his plea & consequences of his plea.
• brief facts must first be read by the judge to enable himself to decide whether the facts alleged amount to an offence as contained in the charge.
  if he is satisfied, the facts will be read to the accused.
• brief facts tendered must be admitted by the accused without qualification.

Question 10

PROSECUTION CASE AT HIGH COURT

Overview

Answer 10

1) Opening statement for prosecution
2) Examination of witness
3) End of prosecution case & submission of no case to answer
4) Close of prosecution case

Question 11

PROSECUTION CASE AT HIGH COURT

Opening statement for prosecution - overview

Answer 11

1) general principles & purpose of opening statement
2) Failure to mention details
3) Whether binding

Question 12

OPENING STATEMENT FOR PROSECUTION

General principles & purpose of opening statement

CA, 2016:

Answer 12

1) General principles - PP v Sa’ari Jusoh:

• PP should describe the charge against the accused and give a brief summary of the evidence by which he proposes to prove the case;
• It should be concise and clear & should be scrupulously fair.

Rationale for opening speech:

• it is of prime importance for the accused to know as to what the exact prosecution case is.

Whether a verdict or conviction can be secured on a basis not opened by prosecution in his speech:

• A verdict can be founded on a basis not indicated by the prosecution in its opening address.
• But it must be done in such a way so as not to place the accused at a tactical disadvantage with resultant unfairness to him.

2) Purpose - Sravana Kumar P Kamutoo v PP (CA, 2016):
- to satisfy the court that the charge against an accused person is not frivolous and that there is some material evidence to proceed against him.

Question 13

OPENING STATEMENT FOR PROSECUTION

Failure to mention details

CA, 2010

Answer 13

Timhar Jimdani Ong & Anor v PP (CA, 2010):

• The prosecution’s failure to mention the details in the opening speech before the commencement of the trial is not fatal as the opening speech is not evidence.

Question 14

OPENING STATEMENT FOR PROSECUTION

Whether it is evidence & binding

CA, 2018

Answer 14

Thinagaran Murugesu v PP (CA, 2018):

• ucapan pembukaan tidak mengikat pihak pendakwaan dan tidak juga menjadi sebahagian daripada keterangan kes pihak pendakwaan.
• Sekiranya berlaku apa-apa penyimpangan daripada apa yang disebutkan dalam ucapan pembukaan semasa saksi-saksi pendakwaan memberikan keterangan, itu tidak memprejudiskan pihak Perayu/tertuduh dan tidak juga meruntuhkan kes pihak pendakwaan.

Question 15

PROSECUTION CASE AT HIGH COURT

Examination of witness

Answer 15

1) The law:
- S.179(2)
2) Stages of examination:
- S.138 EA

Question 16

PROSECUTION CASE AT HIGH COURT

End of prosecution case & submission of no case to answer

Answer 16

1) right to submit - PP v Lee Kwan Woh (FC):

• Accused has the right to submit no case to answer by virtue of Art. 5(1).
• The failure to accord the accused this right, if he so elects to sum up the case, would be a violation of the accused’s constitutional rights to a fair trial as embodied in art. 5(1) of the Federal Constitution.

2) Accused elects not to submit - Roslan bin Maalik v Pendakwa Raya (HC)

• If the accused elects not to submit, then the court is not under a mandatory duty to hear any submission.
• If the accused elects to submit, then court must afford the right of the accused.
• The failure to accord the accused this right would be a violation of the accused’s constitutional rights to a fair trial as embodied in art. 5(1) of the Federal Constitution.

Question 17

PROSECUTION CASE AT HIGH COURT

Close of prosecution case

Answer 17

1) The law:
- S.180(1)
2) Scope:

• There is no prima facie - S.180(2): order for acquittal
• There is prima facie - S.180(3): order to enter defence

3) Standard of proof for prima facie:

• The law - S.180(4)
• Scope: The prosecution has adduced credible evidence; which if unrebutted or unexplained would warrant a conviction.
• Cases: Magendran Mohan v PP & PP v Mohd Radzi Abu Bakar:

Question 18

DEFENCE CASE

Overview

Answer 18

1) The law & scope

2) Submission at the end of defence case

Question 19

DEFENCE CASE

The law & scope

Answer 19

1) The law:
- S.181
2) Whether mandatory to hear - Diana Nelson Tanoja v Pendakwa Raya (FC)

• It was not mandatory for the trial judge to hear submission from counsel before giving his decision.
• The word ‘may’ indicates a discretion.
• Therefore, submission at the end of the defence case was discretionary.

3) cf. Whether the denial of right to submit is fatal - Kok Wah Kuan v PP:

• Denying an opportunity to make submission of no case to answer amounts to depriving an accused of his constitutionally guaranteed right to a fair trial.
• When an accused is denied of a right to fair trial, he is entitled to have his conviction set aside on this ground alone.

Question 20

RIGHT OF PP TO REPLY

Law & scope

Answer 20

1) The law:
- S.182
2) Scope - P v Ang Poon Tek:

• PP has a right to reply.
• Refusal to allow a reply is a material irregularity;
• Retrial could be ordered on the ground.

Question 21

MISCELLANEOUS IN HIGH COURT TRIALS

Overview

Answer 21

1) View of place or locus in quo
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 22

MISCELLANEOUS IN HIGH COURT TRIAL

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

Answer 22

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 23

VIEW OF PLACE OR LOCUS IN QUO

Non-compliance with guidelines

Answer 23

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 24

MISCELLANEOUS IN HIGH COURT TRIAL

Record of proceedings by mechanical means

Answer 24

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 25

MISCELLANEOUS IN HIGH COURT TRIAL

Disposal of exhibits

Answer 25

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 26

MISCELLANEOUS IN HIGH COURT TRIAL

Alibi - overview

Answer 26

1) Meaning & evidential value of alibi
2) Law & scope
3) Notice of alibi
4) Standard & burden of proof for alibi
5) Abandonment of defence of alibi

Question 27

ALIBI

Meaning & evidential value of alibi

FC, 2013

Answer 27

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 28

ALIBI

Law & scope

Answer 28

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 29

ALIBI

Notice of alibi

Answer 29

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 30

ALIBI

Standard & burden of proof for alibi

FC, 2013

Answer 30

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 31

ALIBI

Abandonment of defence of alibi

Answer 31

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 32

MISCELLANEOUS IN HIGH COURT TRIAL

Impeachment proceedings

Answer 32

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 33

MISCELLANEOUS IN HIGH COURT TRIAL

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

Answer 33

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 34

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

Example

Answer 34

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 35

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

Example

Answer 35

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 36

MISCELLANEOUS IN HIGH COURT TRIAL

Prosecutor declines to prosecute further - law & scope

Answer 36

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 37

PROSECUTOR DECLINES TO PROSECUTE FURTHER

DNAA or DAA?

Answer 37

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 38

ADJOURNMENT OF TRIAL

The law & scope

Answer 38

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 39

ADJOURNMENT OF TRIAL

Examples of adjournment

Answer 39

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.