Chapter 7 - Initiation of Criminal Proceedings

Question 1

INITIATION OF CRIMINAL PROCEEDINGS

Overview

Answer 1

1) Cognisance by Magistrate
2) Requirement of sanction
3) Procedures post-complaint
4) Cognisance by knowledge or suspicion

Question 2

COGNISANCE BY MAGISTRATE

The law

Answer 2

S.129:

• by complaint
• by own knowledge or suspicion
• by warrant to inquire requested by PP
• on any person brought before him in custody

Question 3

COGNISANCE BY COMPLAINT

Overview

Answer 3

1) The law
2) Meaning of complaint
3) Duty of Magistrate upon receiving complaint
4) Meaning of taking cognisance
5) Types of complaints
6) Requirements of sanctions
7) Procedures after complaints

Question 4

COGNISANCE BY COMPLAINT

The law

Answer 4

1) General:

- S.128(1)(a)

Question 5

COGNISANCE BY COMPLAINT

Meaning of complaint

Answer 5

1) The law - S.2:
- Complaint is an allegation made orally or in writing to a Magistrate.
2) Scope of complaint - Tan Hoe Watt v PP:

• Includes oral complaints made by a person;
• Either in chambers or in open court.
• Must be an allegation that some person has committed a non-seizable offence.

3) Complaint vs Information - Bong Kim Son v PP:

• information: a statement relating to the commission of an offence made to a police officer under S.107;
• complaint: an allegation made to a Magistrate with a view to his taking action under the Code.
• However, procedure under S.133 is applicable and must be followed whether the complaint is a written complaint or not.

4) cf. complaint include police report - Tan Key Teck v AG:

• Complaint should not be restricted to S.2;
• It should also include police report.

Question 6

COGNISANCE BY COMPLAINT

Duty of Magistrate upon receiving complaint

Answer 6

Tan Hoe Watt v PP:

• If an oral complaint is made, Magistrate when taking cognisance of such offence should proceed to reduce it into writing to be signed by complainant & thus the magistrate thereby turns it into a written complaint.
• Only after he takes cognisance he is bound to examine the complainant.
• If he has not yet take such cognisance, he is not bound to examine the complainant.

Question 7

COGNISANCE BY COMPLAINT

Meaning of taking cognisance

Answer 7

PP v Dato Yap Peng:

• Once the court had taken cognizance of the offence and was seized with jurisdiction to try the case, the institution of the proceedings by the Public Prosecutor was complete.
• It was the scheme of the CPC that trial follows cognizance and cognizance would be preceded by investigation.
• From then on, the whole conduct of the proceedings should be within the exclusive judicial power of the court until its conclusion.

Question 8

TYPE OF COMPLAINTS

Overview

Answer 8

1) Complaints by PP
2) Complaint by person aggrieved
3) Complaint by husband

Question 9

TYPE OF COMPLAINTS

Complaint by PP

Answer 9

S.130:

• No Court shall take cognisance of any offence punishable under Chapter VI of the Penal Code, except section 127, or punishable under section 108A, 298A or
  505 of the Penal Code unless upon complaint made by the Public Prosecutor or by some officer empowered by him on that behalf.

Question 10

TYPE OF COMPLAINTS

Complaint by person aggrieved

Answer 10

S.131

• No Court shall take cognisance of an offence falling under Chapter XIX or
  Chapter XXI of the Penal Code or under sections 493 to 496 both inclusive,
  except upon a complaint made by some person aggrieved by the offence or
  by the Public Prosecutor.

Question 11

TYPE OF COMPLAINTS

Complaint by husband

Answer 11

S.132:

• No Court shall take cognisance of an offence under section 498 of the Penal Code except upon a complaint made by the husband of the woman.

Question 12

REQUIREMENT OF SANCTION

Overview

Answer 12

1) The law & scope of offence - S.129(1)(a), (b), (c)
2) Difference between sanction & consent
3) When sanction is required
4) Failure to obtain sanction

Question 13

REQUIREMENT OF SANCTION

The law & scope of offence

Answer 13

NOTE: no sanction required for all offence if complaints are laid by PP.

1) Types of offences - S.129:
(a) S.172-188 PC: can only take cognisance upon sanction by PP OR upon complaints made by public servant / his subordinate concerned
(b) S.193 - 196, S.199-200, S.205-211, S.228 PC: can only take cognisance upon sanction by PP OR when offence is committed in such court
(c) S.463. 471, 475, 476 PC: can only take cognisance upon sanction by PP OR when the document is given in evidence in the proceeding of such court.
2) Sanction must be in writing:
- S.129(3)
3) Validity of sanction:
- S.129(5): one month
4) Post-sanction:
- S.129(4): court may take cognisance & frame a charge of any other offence disclosed by the charge.

Question 14

REQUIREMENT OF SANCTION

Difference between sanction & consent

Answer 14

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.

Question 15

REQUIREMENT OF SANCTION

When sanction is required

Answer 15

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.

Question 16

REQUIREMENT OF SANCTION

Failure to obtain sanction

Answer 16

1) General - DP Vijandran v. PP:
- The lack of sanction may be cured under s. 422 CPC if the case is c
2) 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.

3) On amended charges - Chiew Poh Kiong:

• 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.

4) Where statute requires sanction - Mahinder Singh v PP:
- where the statute requires express written prior sanction, the doctrine of implied consent has no application.
5) Recent - Ang Theam Choom v PP (CA, 2002):

• Where “sanction” is required, no prosecution can commence unless it is sanctioned;
• However under S.422(b), want of sanction can be excused.

6) Specific provision that requires production of sanction - Kamaleshwaran v PP (CA, 2013):

• 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.

Question 17

PROCEDURES AFTER COMPLAINT

Overview

Answer 17

1) Examination of complainant
2) Making orders
3) Dismissal of complaint
4) Issuance of summons

Question 18

PROCEDURES AFTER COMPLAINT

Examination of complainant

Answer 18

1) The law:
- S.133
2) What - Re Rasiah Munusamy:

• Procedure under S.133 is a sort of preliminary inquiry.
• However, great care must not be taken not to inquire into the case for the defence, or to convert the inquiry into a trial before trial.
• Next procedure: S.136.

3) Purpose of S.133 - Datuk Seri Samy Velu v Nadarajah:

• S.133 is to sift out frivolous, vexatious or petty complaints, or allegation by their nature or circumstances are incapable of being proved.
• Only when cognisance is taken of the complaint that the S.133 comes into operation.

Question 19

PROCEDURES AFTER COMPLAINT

Making orders

Answer 19

1) The law:
- S.134
2) Scope:

• postponement of issuance of summons; or
• notice to PP to inquire further.

3) Notice to PP to inquire further - S.134(2):

• To be done at least 7 days before the date of inquiry.
• Upon receipt of the notice, the Public Prosecutor may appear on the date to assist in the inquiry.

Question 20

PROCEDURES AFTER COMPLAINT

Dismissal of complaint

Answer 20

1) The law:
- S.135
2) Scope:
- complaint may be dismissed if there is no sufficient for proceeding.

Question 21

PROCEDURES AFTER COMPLAINT

Issuance of summons

Answer 21

1) The law:
- S.136
2) Test for issuance of summons - Re Rasiah Munusamy:

• If he is satisfied that a prima facie case is disclosed by the complaint, it does not follow that he is bound to issue a warrant although he has a discretion to do so.
• In exercising his discretion, he take into various considerations:
• The nature of the offence;
• The probability of the person complained of absconding;
• Whether element of urgency is involved.
• Instead of warrant, he may issue a summons under S.136.
• Once issued, court is deemed to have taken cognisance of the offence.

Question 22

COGNISANCE BY OWN KNOWLEDGE OR SUSPICION

Overview

Answer 22

1) The law

2) The trial

Question 23

COGNISANCE BY OWN KNOWLEDGE OR SUSPICION

The law

Answer 23

S.128(b)

Question 24

COGNISANCE BY OWN KNOWLEDGE OR SUSPICION

The trial

Answer 24

S.128(2):

• may request not to be tried by the same Magistrate that took cognisance.