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Criminal Procedure > Chapter 6 - Powers of PP > Flashcards

Chapter 6 - Powers of PP Flashcards

1
Q

POWERS OF PP

Overview

A

1) Office of PP
2) Power to institute criminal proceedings
3) Power to conduct criminal proceedings
4) Power to discontinue criminal proceedings
5) Limitation of PP’s power

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2
Q

OFFICE OF PP

Overview

A

1) Attorney-general
2) Judicial power of AG
3) General role of PP
4) Deputies & assistants

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3
Q

OFFICE OF PP

Attorney-general

A

1) Who can be AG & his duty:
- Art. 145
2) How is AG a PP:

  • S.376(1) & S.3 Interpretation Act.
  • S.376(1) CPC: Sub-section (1) clearly states that AG is a PP;
  • S.3 Interpretation Act: Attorney General is the public prosecutor.
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4
Q

OFFICE OF PP

Judicial power of AG

A

1) The law:

  • Art. 145(3): AG shall have power at his discretion to institute, conduct or discontinue any criminal proceedings;
  • other than proceedings at Court Martial & Syariah court.

2) Scope of discretion - Khairuddin bin Abu Hassan v Tan Sri Mohamed Apandi Ali (disaman sebagai Peguam Negara yang dilantik):

  • The discretion under Art.145(3) is an absolute discretion;
  • Such discretion is not amenable to judicial review.
  • The court cannot compel the AG to institute any criminal proceedings which he does not want to institute or go on with or which he has decided to discontinue.

3) Syariah court - Sukma Darmawan v Ketua Pengarah Penjara, Malaysia:

  • Where an offender commits an offence triable by either civil court or a Syariah court, he may be prosecuted in either of those courts.
  • AG may, at his discretion, institute criminal proceedings, before a court of competent jurisdiction.
  • Without jurisdiction, the institution of criminal proceeding by the AG amounts to a nullity.

4) Court-martial - Robin ak Bandang v PP:

  • AG has no power to institute criminal proceedings before a court-martial;
  • When a crime such as rape (S.376 PC) is allegedly being committed, AG as the PP has the discretion to institute proceeding for an offence in the appropriate civil criminal court.
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5
Q

OFFICE OF PP

General role of PP

A

1) Quasi-judicial role - Bunya Anak Jalang v PP:

  • Review the evidence in the investigation papers;
  • Determine if the evidence in the IP proves beyond reasonable doubt that an offence has been committed;
  • Authorise charges upon which the accused is to be charged.

2) Does not represent complainant - PP v Ottavio Quattrocchi:

  • Prosecutor cannot be said to represent complainant in a criminal prosecution;
  • He does not take instructions from the complainant;
  • Instead, he acts for the state & exercise OWN DISCRETION as the guardian of the public interest.
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6
Q

OFFICE OF PP

Deputies & assistants

A

1) Solicitor-General - S.376(2):
- Empowers the SG to carry out functions of AG in the AG’s absence or inability.
2) Meaning of absence - must be on official leave or out of Malaysia - Leong Kok Huat v PP:

  • The word “absence” means not just physical absence, from the office, but AG should at least be on official leave or out of the Malaysia at the material time.
  • In another state performing his duties does not amount to “absence” within (2).

3) PP’s power not exercisable by SG:

  • S.376(4):
  • S.418A:

2) DPP.

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7
Q

POWER TO INSTITUTE CRIMINAL PROCEEDINGS

Overview

A

1) Meaning of institute
2) Commencement of proceedings
3) Requirement of consent
4) Requirement of sanction
5) Power to order to investigate
6) Power to hold death inquiries or inquests
7) Power to transfer case as it thinks fit

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8
Q

POWER TO INSTITUTE CRIMINAL PROCEEDINGS

Meaning of institute

A

1) Meaning - PP v Datuk Harun bin Haji Idris:

  • The word institute means to set on foot, initiate, start.
  • Refers to the commencement of proceedings & prosecutions.

2) Distinction between “institute” and “conduct” - Ang Theam Choon v PP (CA, 2002):

  • Institution is at the earlier stage, when an accused person is called upon to plead to the charge.
  • Conduction is at the later stage, i.e. trial stage.
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9
Q

COMMENCEMENT OF PROCEEDINGS

Overview

A

1) What offence
2) What law
3) Which forum

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10
Q

COMMENCEMENT OF PROCEEDINGS

What offence

A

Long bin Samat & Ors v PP:

  • AG shall have the power exercisable at his discretion over the control & direction of all criminal prosecution.
  • Courts do not have the power to compel an AG to enhance a charge when he is content to go on with a charge of a less serious nature.
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11
Q

COMMENCEMENT OF PROCEEDINGS

What law

A

1) Principle - Lee Weng Sang v PP:

  • PP has the right to amend, reduce, alter or enhance the charges.
  • OTF, the decision to amend the charges from charges carrying maximum14 years imprisonment to charges that carry death penalty is left to the conscience of the PP.

2) whether contravenes Art. 8 - Johnson Tan Han Seng v PP:

  • The court is of the opinion that AG may discriminate without contravening Art. 8 (equal protection of the law).
  • The choice is entirely up the decision and exercise of discretion of the AG.

3) Whether contravenes Art.8 - Mat Suhaimi bin Shafie v Pendakwa Raya:

  • Art. 8 does NOT require the persons accused of like offences be charged under the same statute.
  • By virtue of 145(3), AG is entitled to discriminate without contravening Art. 8 & he has absolute discretion.
  • It is not open to the court to inquire into the merits of the exercise of the discretion.
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12
Q

COMMENCEMENT OF PROCEEDINGS

Which forum

A

PP v Ho Huan Teong:

  • Art. 145(3) are wide enough to confer upon AG an unfettered discretion to choose which court he wishes to commence proceedings against the accused.
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13
Q

REQUIREMENTS OF CONSENT

Overview

A

1) Difference between sanction & consent
2) Failure to obtain consent
3) Doctrine of implied consent
4) Provisions for requirement of consent

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14
Q

REQUIREMENTS OF CONSENT

Difference between sanction & consent

A

Abdul Hamid v PP:

SANCTION:

  • A prosecution can be sanctioned without deep consideration of any particular case;
  • The sanction is no evidence of consent.

CONSENT:

  • Consent is an act of reason, accompanied with deliberation;
  • The mind weighing, as in balance, the good & evil on each side.
  • Before consent is given, PP shall applied his mind to the particular case & full consideration is required.
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15
Q

REQUIREMENTS OF CONSENT

Failure to obtain consent

A

Ang Theam Choon v PP:

  • not excused by S.422 CPC.
  • the entire trial would be illegal.
  • Any conviction & sentence arising therefrom would be liable to be set aside.
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16
Q

REQUIREMENTS OF CONSENT

Doctrine of implied consent

A

1) general rules - Ooi Hee Koi:

  • PP was himself the prosecutor;
  • His consent is IMPLICIT in his action.
  • Requirement of consent is applicable where prosecutions take place when the public prosecutor is NOT the actual prosecutor, i.e. prosecution by other persons than PP.

2) Doctrine of implied consent - principles - PP v Mohamed Halipah:

  • DPP is vested with all the powers of PP;
  • Where the prosecution is conducted by a DPP, the consent of the PP is implicit in his action.
  • No written consent of the PP is required.

3) Consent after amendment of charges - Tarmizi bin Yaacob v PP:

  • Consent of the PP to the amended charge was superfluous as the prosecution was conducted by DPP;
  • The failure to obtain consent would only be fatal if the case is being prosecuted by a person other than the DPP;
  • In a case where DPP appears, the court will assume that the PP consents to the prosecution;
  • DPP is regarded as “alter ego” of the Public Prosecutor.
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17
Q

REQUIREMENTS OF CONSENT

Provisions for requirement of consent

A

1) S.177A: before transmission of a criminal case

Must be obtained prior to transmission - PP v An Kee Cheng:

  • A Magistrate cannot transmit a case to the High Court without the consent of the PP.

Magistrate has NO discretion NOT to transmit - PP v Tiong King Guan:

  • Magistrate or Sessions Court judge has NO discretion not to transmit the case to the High Court.
  • Magistrate or SC judge also has no power to quash a charge and release the accused without condition, bearing in mind that it was a non-bailable offence.

2) S.39B(3) DDA: offences involving dangerous drugs

Oladotun Lukmaru Umaru v PP:

  • consent must first be obtained before transmitting the case to HC.
  • order to transmit the case without obtaining a consent is held to be a nullity.

Pendakwaraya v Toha Yusuf:

  • prior consent of PP is not an essential pre-requisite to effect a transmission.
  • as long as it is tendered before taking a plea in HC, the transmission is not a nullity.

3) S.126(1) Child Act: offences under the Act

  • prosecution shall not be instituted except by or with the consent in writing of the Public Prosecutor.
  • A person who is the investigating officer of an offence under this Act shall not prosecute the case in respect of that offence.
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18
Q

REQUIREMENT OF SANCTION

Overview

A

1) Difference between sanction & consent
2) When sanction is needed
3) Failure to obtain sanction
4) Doctrine of implied consent on sanction
5) Provisions for requirement of sanction

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19
Q

REQUIREMENT OF SANCTION

Difference between consent & sanction

A

Abdul Hamid v PP

SANCTION:

  • A prosecution can be sanctioned without deep consideration of any particular case;
  • The sanction is no evidence of consent.

CONSENT:

  • Consent is an act of reason, accompanied with deliberation;
  • The mind weighing, as in balance, the good & evil on each side.
  • Before consent is given, PP shall applied his mind to the particular case & full consideration is required.
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20
Q

REQUIREMENT OF SANCTION

When it is needed

A

Hj Mohamed Paman v PP

  • The sanction should be adduced at the material time when he is CHARGED in court;
  • Not subsequently at the trial.
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21
Q

REQUIREMENT OF SANCTION

Failure to obtain sanction

A

1) On conviction - Joginder Singh v PP:

  • Conviction should not be set aside merely on account of want of sanction;
  • This is unless the failure to obtain sanction has occasioned a failure of justice.

2) On amended charges - Chiew Poh Kiong:

  • Lack of sanction may be cured under 422 provided that it does not occasion any miscarriage of justice.
  • S.160 allows the trial to be proceeded if amended charge arises from the same facts which sanction is previously obtained.

3) For specific provision that requires production of sanction - Kamaleshwaran v PP:

  • S.9 of RRA was couched in mandatory terms which goes to the jurisdiction of the court.
  • Therefore, the failure to comply with the mandatory requirement of the provisions renders the entire proceedings a nullity and cannot be cured under section 422 of the CPC.
  • Non-production of the sanction invalidates the entire proceedings.
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22
Q

REQUIREMENT OF SANCTION

Doctrine of implied consent on sanction

A

Whether doctrine of implied consent has application on sanction - Mahinder Singh v PP:

  • Where the statute requires express written prior sanction, the doctrine of implied consent has no application.
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23
Q

POWER TO ORDER TO INVESTIGATE

The law & scope

A

1) The law:
- S.108(2)
2) Scope - PP v Seridaran:

  • Under S.108, no police officer shall exercise any special power of investigation in non-seizable offence to investigate, without an OTI from the PP.
  • However, failure to obtain OTI does not necessarily vitiate the trial.
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24
Q

POWER TO ORDER TO INVESTIGATE

The law & scope

A

1) The law:
- S.108(2)
2) Scope - PP v Seridaran:

  • Under S.108, no police officer shall exercise any special power of investigation in non-seizable offence to investigate, without an OTI from the PP.
  • However, failure to obtain OTI does not necessarily vitiate the trial.
  • i.e Failure to obtain OTI does not render evidence obtained by the police in such investigation illegal or inadmissible.
  • it does not affect the jurisdiction of the court to hear the case.
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25
Q

POWER TO HOLD DEATH INQUIRIES OR INQUESTS

The law & scope

A

1) In suo moto: S.339

  • PP need not to wait for the Magistrate to report or for an inquiry to be initiated by the Magistrate.
  • PP may also direct a Magistrate to hold an inquiry at any time, and order a further inquiry where PP deems fit (Ganga Gouri v Pendakwa Raya).

2) Application by interested party:

  • Teoh Meng Kee v PP (CA, 2014);
  • AG MY v PP (HC, 2020)

3) Procedures: S.340

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26
Q

POWER TO TRANSFER CASE AS IT THINKS FIT

The law

A

S.418

S.418A

27
Q

POWER TO CONDUCT CRIMINAL PROCEEDINGS

Overview

A

1) Definition of conduct
2) Existence of external statutory provision
3) Discharging a prosecutor
4) Who is competent to conduct prosecution
5) Absence of DPP in prosecution
6) Power to call or not to call witness
7) Power to conduct criminal appeal

28
Q

POWER TO CONDUCT CRIMINAL PROCEEDINGS

Definition of conduct

A

1) PP v Datuk Harun bin Haji Idris:

  • To conduct means to lead, guide and manage.
  • It conveys the idea of leading and guiding.
  • The “conduct” under 145(3) refers to the conduct of prosecutions in court;
  • “control and direction” under 376(1) is in respect of all criminal prosecutions & proceedings; NOT of criminal procedure or the jurisdiction of the court.

2) Ang Theam Choon v PP (CA, 2002):

  • Institution is at the earlier stage, when an accused person is called upon to plead to the charge.
  • Conduct is at the later stage, i.e. trial stage.
29
Q

POWER TO CONDUCT CRIMINAL PROCEEDINGS

Existence of external statutory provision

A

1) Repco Holdings Bhd v PP:

  • Since the Constitution exclusively authorizes the Attorney General to conduct prosecutions, no other authority may be lawfully empowered to exercise that function.
  • Therefore, S.126(2) of the SIA is ultra vires art 145(3) of the Federal Constitution.

2) Effect on the provision - PP v Lee Ming:

  • The statutory provision that allows persons other than AG to institute, conduct & discontinue any proceedings for an offence is unconstitutional, null and void.
  • The authorisation given pursuant to the provision also did not clothe the prosecuting officer with the authority to prosecute.
30
Q

POWER TO CONDUCT CRIMINAL PROCEEDINGS

Discharging a prosecutor

A

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.
31
Q

WHO IS COMPETENT TO CONDUCT CRIMINAL PROSECUTION

Overview

A

1) Officials - S.377(a)
2) Persons authorised by writing by the PP - S.377(b)
3) Advocate employed - S.379
4) Private persons - S.380

32
Q

WHO IS COMPETENT TO CONDUCT CRIMINAL PROSECUTION

Officials

A

S.377(a):

1) DPP & Judicial & Legal Service Commission:

  • Art. 138(1): JLSC is established in accordance with the Article.
  • Art. 144(1): The functions of the Commission are to:
  • appoint, confirm, emplace on the permanent or pensionable establishment;
  • promote, transfer and exercise disciplinary control over members of the service under its jurisdiction.
  • DPP is a member of the Commission.

2) PP: S.376(1)
3) SG: S.376(2)
4) DPP: S.376(3)
5) Whether letter of appointment is required - Shafee Abdullah v PP:
- Procedurally, there is nothing that mandates production by the Public Prosecutor of the Letter of Appointment.
6) Assistant PP: S.376(3A)

33
Q

WHO IS COMPETENT TO CONDUCT CRIMINAL PROSECUTION

Persons authorised by writing by the PP - Appointment

A

1) The law:
- S.377(b):
2) Requirement of authorisation letter:

PP v Lew Koy:

  • there is no necessity to tender or file the authorisation letter in court, but the prosecuting officer is required to show the written authority to the court if it is challenged.
    cf. Ak Koh Enterprise Sdn Bhd v PP:
  • The requirement of the law is clear that such an authorization must be produced when the trial begins so as to confer jurisdiction on the court.

Recent decision - 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.

3) 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.
34
Q

WHO IS COMPETENT TO CONDUCT CRIMINAL PROSECUTION

Persons authorised by writing by the PP - Examples

A

1) S.377(b)(2) - police officer:

Only Inspector and above - PP v Shahareeil Said:

  • Only a police officer NOT below the rank of Inspector may conduct the prosecution in court;
  • This is provided that they have been authorised in writing by the PP.
  • Where the police officer conducting the trial is below the requisite the rank, the trial is a nullity.
    2) S.377(b)(3) - officer of Govt department:

officer from Islamic Religious Department - PP v Mohd Noor Jaafar (HC, 2006):

  • General words “rights and powers” need not be construed as requiring the consent of PP personally.
  • DPP was permitted to do so.

officer from Fisheries Department - Pai San & Ors v PP (CA, 2002):

  • S.38 EEZA retained the power of PP to give written consent to the prosecution.
    In this case, the PP gave such written consent and therefore the prosecution conducted by the officer was held to be valid.
35
Q

WHO IS COMPETENT TO CONDUCT CRIMINAL PROSECUTION

Advocate employed

A

1) The law:
- S.379
2) Scope - 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.
36
Q

WHO IS COMPETENT TO CONDUCT CRIMINAL PROSECUTION

Private persons

A

1) The law:
- S.380
2) Scope:

  • no need written authorization;
  • only for certain non-seizable offences.

3) Effect of prosecution by private person on seizable offence - PP v KM Basheer Ahmad:
- The prosecution is a nullity.

37
Q

POWER TO CONDUCT CRIMINAL PROCEEDINGS

Absence of DPP

A

1) Whether affords a ground for acquittal - Pang Wai Kong v PP:
- Mere absence of the initial PO who was in maternity leave to continue with the handling of the case did not entitle the accused to be acquitted by the court.
2) Other PO prosecuted instead of DPP - whether affords a ground for acquittal:

General - PP v Mat Radi:

  • DPP informed the court that the matter has been considered by PP and it was decided that the prosecution should be conducted by police officer.
  • HC held that while it is desirable that DPP conducts the criminal prosecution, there is no absolute law or principle to ask so.

Serious charges - Pawanteh & Ors v PP:

  • Although the prosecution is conducted with greatest care, it is unfair for the Police Officer prosecuting, nor the public, nor the Magistrate, since the nature of the case involves complexity.
  • It is insufficient & inappropriate that the crime of this nature is allowed to be conducted by a relatively junior Police Officer.
38
Q

POWER TO CONDUCT CRIMINAL PROCEEDINGS

Power to call or not to call witnesses

A

Adel Ed Dabbah v AG of Palestine:

  • PP has the absolute discretion to call witness provided that he has no oblique motive.
39
Q

POWER TO CONDUCT CRIMINAL PROCEEDINGS

Power to conduct criminal appeal

A

1) The law:
- S.378
2) Who can conduct - Ponniah v Lim:

  • By virtue of S.308 which requires copies of the appeal record to be transmitted to the appellant & to the PP, the proper respondent should be PP.
  • Save as provided by S.378 & 379, no one else has the right of any audience before the appellate High Court.

3) Who can conduct - cf. DSAI v Pendakwa Raya (CA, 2014):

  • S.378 cannot be read in isolation and must be read together with S.376(3) and S.379;
  • They are complementary and gives the PP power to employ an advocate to appear in appeal.
  • Therefore, it is held an advocate employed by PP can conduct an appeal on behalf of PP.
40
Q

POWER TO DISCONTINUE CRIMINAL PROCEEDINGS

Overview

A

1) Withdrawal of charges in case pending

2) Nolle prosequi

41
Q

NOLLE PROSEQUI

Overview

A

1) the law & scope
2) representation letter
3) whether DAA or DNAA
4) reinstatement of trial after discharge

42
Q

NOLLE PROSEQUI

the law & scope

A

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.
43
Q

NOLLE PROSEQUI

representation letter

A

1) What:
- Aside the formal plea bargaining process, the accused person through his advocate may pursue with a Letter of Representation to the Public Prosecutor with cogent basis and full facts disclosed.
2) Purpose:

  • to have charge withdrawn & offer to become a PW in case of joint trial;
  • to have charge reduced for a lesser punishment;
  • to plead guilty for a lesser charge;
  • to plead guilty for one charge & withdraw remaining charges.
44
Q

NOLLE PROSEQUI

whether DAA or DNAA - overview

A

1) principles overview
2) general rule
3) exception
4) test for DAA or DNAA
5) recent approach

45
Q

NOLLE PROSEQUI - WHETHER DAA OR DNAA

Principles overview

A

1) General rule:
- DAA.
2) Exception:
- DNAA.
3) Test:
- good cause, very good grounds, interest of justice demands.
4) Recent approach:
- depends on at what stage of the criminal proceedings the withdrawal is made.

46
Q

NOLLE PROSEQUI - WHETHER DAA OR DNAA

the law

A

S.254(3):

  • the discharge shall not amount to an acquittal unless court directs.
47
Q

NOLLE PROSEQUI - WHETHER DAA OR DNAA

application

A

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.
48
Q

NOLLE PROSEQUI - WHETHER DAA OR DNAA

test for DAA or DNAA

A

1) The test - Good cause or good grounds to give DNAA instead of DAA:

  • K Abdul Rasheed v PP;
  • PP v Mat Zain;
  • Koh Teck Chai v PP.

2) Failure to give good reasons - Ganesan a/l Subramaniam v PP:

  • Prosecution had failed to give good reasons as to why the accused should only be DNAA.
  • There was nothing to show that the prosecution was able to proceed for the time being or proceed within reasonable time.
  • It would be not right to leave an individual with a charge hanging over him for indefinite period of time.
    DAA granted.
49
Q

NOLLE PROSEQUI - WHETHER DAA OR DNAA

recent approach

A

1) case has not started - Vigny Alfred Raj Viector Amratha Raja (CA, 2020)

  • Since the trial of the case has not started & the prosecution has asked for DNAA because they cannot proceed for the time being as the investigation was still ongoing and that they would proceed with the trial when they are ready, it is a good grounds for granting DNAA.
  • DNAA granted.

2) case has passed prima facie - Siti Aisyah v PP & Another Appeals (CA, 2019)

  • Court had considered the oral and documentary evidence tendered by the prosecution at the close of the prosecution and subsequently ruled that a prima facie case had been made out by the prosecution against both the accused and called for the defence of the accused.
  • There was no valid reason why DAA should be given at this stage.
  • Both the accused then choose to give sworn evidence after the three alternatives were explained to them.
  • Therefore, DNAA is the most appropriate order even though the learned DPP failed to provide reason in support of their application.
50
Q

NOLLE PROSEQUI

Reinstatement of trial after discharge

A

1) The law:
- S.254A
2) Scope:
- reinstatement of trial after discharge of accused by court and recharged for the same offence by the PP and to be continued as if there had been no such order given.
3) application - Tan Chow Cheng v Pendakwa Raya:

  • The provision S.254A allows an accused who is DNAA to be recharged;
  • The case will continue from where it stopped.
51
Q

LIMITATION OF PP’S POWER

Overview

A

1) Inherent jurisdiction of court
2) Plea of autrefois convict or acquit
3) serious charge instituted w/o reference to PP
4) evidence that does not support charge
5) evidence of mala fides

52
Q

INHERENT JURISDICTION OF COURT

Overview

A

1) Scope of inherent jurisdiction
2) Exercise of inherent jurisdiction
3) Procedure to invoke inherent jurisdiction

53
Q

INHERENT JURISDICTION OF COURT

Scope of inherent jurisdiction

A

PP v Ini Abong and other trials:

  • Court will all for practical purposes recognised the decision of AG to prosecute the matter pursuant to Art. 145(3).
  • However, once the matter is brought to the court & bona fide of the decision is challenged, the court always has the inherent jurisdiction to address the issue.
54
Q

INHERENT JURISDICTION OF COURT

Exercise of inherent jurisdiction

A

1) Karpal Singh & Anor v PP:
- Only when there is a miscarriage of justice & court must not make a decision which is in conflict with the intention of the legislature.
2) Chew Wai Keong v PP:

The court has the power to set aside and quash a charge which is mala fide, oppressive or an abuse of process or when there is a miscarriage of justice.
Such inherent powers must be exercised with caution.

3) Conditions - Chew Wai Keong v PP:

  • Cannot be invoked to override an express provision of law or when there is another remedy available;
  • Strictly confined to procedural matters only.
55
Q

INHERENT JURISDICTION OF COURT

Procedure to invoke

A

PP v DSAI:

  • Apply by motion to a High Court to quash the indictment;
  • Applicant has to prove that on the face of indictment or by an affidavit, that the charge which has been preferred is without jurisdiction or has a substantial & apparent defect.
56
Q

PLEA OF AUTREFOIS CONVICT OR ACQUIT

Overview

A

1) the law
2) meaning of autrefois convict
3) meaning of same offence
4) recent application

57
Q

PLEA OF AUTREFOIS CONVICT OR ACQUIT

the law

A

1) Art. 7(2)

2) S.302

58
Q

PLEA OF AUTREFOIS CONVICT OR ACQUIT

meaning of plea of autrefois convict & acquit

A
  • An accused person should not be imperilled twice over or more times for the same act or omission.
  • Such a person cannot be tried on the same facts for the same offence nor can he be tried on the same facts for for any other offence which arise on the same facts.
59
Q

PLEA OF AUTREFOIS CONVICT OR ACQUIT

meaning of same offence

A

1) Essential ingredients of the offence - Jamali bin Adnan v PP:

  • For a plea of autrefois convict or acquit to be applicable, essential ingredients of the offence must be the same.
  • OTF, the charges preferred against the accused has different essential ingredients and therefore, plea of autrefois convict would fail.

2) Subject-matter - Jagjit Singh v Reg:

  • For a plea of autrefois convict or acquit to be applicable, subject-matter of the offence must be the same.
  • OTF, it is held that the plea would not apply to situations where a person may have been acquitted years ago & presently charge with similar offence involving a different subject-matter.

3) Order of discharge - Lee Chan Sang:
- An order of discharge is not a bar to fresh prosecutions based on the same facts.

60
Q

PLEA OF AUTREFOIS CONVICT OR ACQUIT

recent application

A

PP v Gan Boon Aun:

  • For the doctrine of autrefois to apply, it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged.
  • The word ‘offence’ embraces both the facts which constitute the crime and the legal characteristics which make it an offence.
  • For the doctrine to apply it must be the same offence both in fact and in law.
  • Therefore, the doctrine of autrefois acquit only applies where an accused is charged for the same offence for which he has been acquitted.
61
Q

LIMITATION OF PP’S POWER

Serious charge instituted w/o reference to PP

A

Chua Chor Kian v PP:

  • Where a serious charge is instituted without reference to PP, and it has the effect of denying bail, the court will no hesitate to discharge the accused.
62
Q

LIMITATION OF PP’S POWER

Evidence that does not support present charge

A

PP v Jorge Enrique:

  • In cases where evidence adduced does not support the initial charge preferred, the court has the power to amend the charge disclosing the appropriate offence.
63
Q

LIMITATION OF PP’S POWER

Evidence of mala fides

A

PP v DSAI:

  • Where there is evidence of mala fides, it is open to the accused to file a motion with the High Court to quash the prosecution.

Criminal Procedure (25 decks)

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