Chapter 8 - Transmission & Transfer of Criminal Cases

Question 1

TRANSMISSION & TRANSFER OF CRIMINAL CASES

Overview

Answer 1

1) Transmission of a criminal case
2) Transmission under DDA
3) Issue on transmission of cases
4) Transfer of cases by Magistrate or SC judge
5) Transfer of cases by HC judge
6) Transfer of cases on certificate issued by PP

Question 2

TRANSMISSION OF A CRIMINAL CASES

Overview

Answer 2

1) The law
2) Need for consent
3) Refusal to transmit
4) Power to grant DNAA
4) Recent application

Question 3

TRANSMISSION OF A CRIMINAL CASES

The law

Answer 3

S.177A

Art. 145(3A)

Question 4

TRANSMISSION OF A CRIMINAL CASES

Need for consent

Answer 4

PP v An Kee Cheng & Anor:

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

Question 5

TRANSMISSION OF A CRIMINAL CASES

Refusal to transmit

Answer 5

1) PP v Tiong King Guan:

• CA held that a 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) PP v. Toha M Yusuf & Ors;
3) PP v. Thayalan Maniam;

• i.e. Magistrate has no option but to transmit the case to the High Court.
• the delay in transmission such as the chemist report not being ready was not tolerated by these courts.
• but these two cases concern on DDA, so transfer is made under S.41A.

Question 6

TRANSMISSION OF A CRIMINAL CASES

Power to grant DNAA pending consent

Answer 6

PP v Mohd Shaifuldin bin Khairudin:

• A Magistrate has NO power to grant a discharge not amounting to acquittal even if the consent of PP has been delayed or has yet to be tendered.

Question 7

TRANSMISSION OF A CRIMINAL CASES

Recent application

Answer 7

Percy Wong Kiet v PP (HC, 2016):

• The prosecution was already conducted by the DPP;
• When the prosecution is conducted by the DPP, the consent of the PP is to be inferred or implied.
• The court must balance the need for a speedy trial with the need of the prosecution to ensure that all available evidence is before the court to proceed with the trial in the High Court.
• OTF, three months was a reasonable period to ensure that all evidence such as the necessary chemist report was available before the trial was fixed in the High Court.
• HC decline to revise order of Magistrate giving 6 November as next mention date & order said date to be final adjournment of case for the case to be transmitted as soon as possible.

Question 8

TRANSMISSION UNDER DDA

Overview

Answer 8

1) The law
2) Pre-requisites
3) Need for consent for offence triable exclusively by HC
4) Need for consent for offence required by PP to be tried in HC

Question 9

TRANSMISSION UNDER DDA

The law

Answer 9

1) The law:
- S.41A
2) Scope - PP v Marwan bin Ismail:

• No power of MC or SC to record any plea from the accused persons.
• Only has the power to receive the production of any accused person, to have the charge explained to him to transmit the case to HC.
• S.41A DOES NOT empower a Magistrate to remand an accused who is tentatively charged for drug trafficking under S.39B(1).

Question 10

TRANSMISSION UNDER DDA

Pre-requisites

Answer 10

1) Production in sub-courts - PP v Darkasyi:

• Accused shall be produced before the appropriate subordinate court;
  charge will be read to him but NO plea shall be taken.

2) No plea shall be taken at sub-courts - 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 11

TRANSMISSION UNDER DDA

Need for consent for offence triable exclusively by HC

Answer 11

1) Before transmit - Oladotun Lukmaru Umaru v PP:

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

2) Before taking plea at HC - cf. PP v Toha M Yusuf & Ors:

• 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) Current position:

PP v Marwan bin Ismail:

• offence: DDA
• consent for transmission is NOT needed.
• Once produced, Magistrate must transmit the case to the High Court even without the consent of PP.

PP v Toha M. Yusuf & Ors:

• When the accused is produced in the High Court, upon the case being transmitted pursuant to s. 41A(1) DDA, the question of any consent (written or oral) of the Public Prosecutor to institute a prosecution under s. 39B DDA is academic, as his deputy always appears personally in the High Court;
• there is necessarily an implied consent to the prosecution.
• the prior consent of the public prosecutor is not an essential pre-requisite to effect a transmission by the magistrate of a case triable exclusively by the High Court, pursuant to s. 41A(1) DDA;
• The transmission of the present case on 16 December 2005 was not a nullity for any jurisdictional error, by reason of the absence of the consent of the Public Prosecutor before the Magistrate.

Question 12

TRANSMISSION UNDER DDA

Need for consent for offence required by PP to be tried in HC

Answer 12

• No consent required prior to transmission.

Question 13

ISSUE ON TRANSMISSION OF CASES

How immediate should Magistrate transmit?

Answer 13

1) The guidelines - PP v Marwan bin Ismail (CA):

Magistrate shall:

• (i) have the charge read to him;
• (ii) explain to him the charge;
• (iii) not to record any plea by the accused, even if he chose to make one;
• (iv) transmit the case to the High Court; and
• (v) cause the accused person to be brought before the High Court “as soon as is practicable.”

2) General rule - not immediately - Percy Wong Kiet:

• Although the magistrate have no choice but to order the transmission of the case to the High Court, when he must do it is NOT IMMEDIATELY upon the charge being tendered because no such word or words to that effect is used in s. 177A.
• The court must balance the need for a speedy trial with the need of the prosecution to ensure that all available evidence is before the court to proceed with the trial in the High Court.
• cf. Toha: Toha’s case was exceptionally delayed for the accused person.

2) Exception - inordinate delay - PP v Mohd Toha M Yusuf & Ors:

• The order for transmission should have been made on the very first day the said charge was framed, read and explained to the accused (after the expiry of any lawful detention by the police under s. 117 CPC), consistent with the unequivocal requirements of s. 41A(1) Dangerous Drugs Act.
• Magistrates should, as in cases under s. 39B(1) DDA, have the charge read and explained to the accused and immediately thereafter, transmit the case to the High Court.
• This would ensure that there would be no hibernation at the magistrate’s court of cases triable in the High Court.
• If this is done, the judiciary would be on track to ensure speedy justice for accused faced with offences punishable with death.
• OTF, there has been an inordinate delay in the transmission of the case to the High Court, which delay is not sanctioned by the law.
• Magistrates should not, unwittingly, be responsible for such inordinate delays to the detriment of the accused and the image of the judiciary.

Question 14

ISSUE ON TRANSMISSION OF CASES

Whether consent is needed prior transmission

Answer 14

1) CONSENT IS NOT NEEDED: PP v Lee Chan Sang (HC, 1989):

• Transmission under S.41A;
  Section 41A of the Act confers jurisdiction on the Magistrate’s Court only in so far as to receive the production of the accused and to have the charge explained to him;
• Magistrate is then to transmit the case to the High Court forthwith without holding a preliminary inquiry.
• Consent is not needed prior to transmission.

2) CONSENT NEEDED: PP v Oladotun Lukmanu Umaru & Ors: (HC, 1990)

• Transmission under S.41A;
  Consent is needed;
• Transmission w/o consent is a nullity.
• Does not refer to: PP v Lee Chan Seng.

3) CONSENT IS NEEDED: PP v An Kee Cheng (HC, 2006):
the consent of the public prosecutor must be obtained before a Magistrate’s court transmits to the High Court any case under s. 39B of the DDA or any other case that is to be tried by the High Court in accordance with Chapter XX of the CPC.

4) CONSENT IS NOT NEEDED: PP v Mohd Toha Md Yusuf (HC, 2006):

• The prior consent of the Public Prosecutor is not an essential prerequisite to effect a transmission by the Magistrate of a case triable exclusively by the High Court, pursuant to s. 41A(1) DDA.
• OTF, the transmission of the present case on 16 December 2005 was not a nullity for any jurisdictional error, by reason of the absence of the consent of the Public Prosecutor before the Magistrate.
• There had been an inordinate delay in the transmission of the case to the High Court, which delay was not sanctioned by the law.
• Distinguished: PP v Oladotun Lukmaru Umaru
  the judicial power of transmission is statutorily vested upon a Magistrate under s. 41A(1) Dangerous Drugs Act, and that power cannot be frustrated by introducing a condition precedent that must be satisfied for its exercise, unless expressly provided in the Act.

5) CONSENT IS NOT NEEDED: PP v Marwan Ismail (CA, 2008):

• Transmission under S.41A;
  Consent is NOT needed;
  Once produced, that court is under a mandatory obligation to order a transmission of the case.
• Followed: This is the clear directive of the Supreme Court in Lee Chan Sang v PP.
• Overruled: PP v Oladotun Lukmanu Umaru & Ors
• Does not refer to: PP v An Kee Cheng & PP v Mohd Toha Md Yusuf.

6) CONSENT IS NEEDED BUT IT CAN BE IMPLIED: Percy Wong Kiet v PP (HC, 2016)

• A consent is a must before the transmission of the case is to be ordered;
• However, consent is to be implied or inferred.
  When the prosecution is conducted by the DPP, the consent is already implied.

7) CONSENT IS NEEDED: Ravikumar Krishnan & Anor v PP (HC, 2020):

• Izin pendakwaan adalah merupakan salah satu perkara yang perlu diberikan perhatian oleh Majistret sebelum sesuatu kes boleh dipindahkan ke Mahkamah Tinggi berdasarkan otoriti:
• S.39B DDA;
• S.177A CPC;
• PP v An Kee Cheng;
• Parliament Hansard on 8th April 1975.
• Distinguish: PP v Marwan Ismail - alasan yang diberikan oleh Majistret untuk tidak memindahkan kes ke Mahkamah Tinggi pada kadar segera adalah bagi menunggu keputusan laporan kimia. Marwan Ismail tidak mempertimbangkan secara mendalam berkenaan isu izin pendakwaan yang merupakan suatu elemen utama sebelum sesuatu kes boleh dipindahkan ke Mahkamah Tinggi.
• Distinguish: PP v Toha M Yusuf & Ors - inordinate delay.

Question 15

TRANSFER OF CASES BY MAGISTRATES OR SC JUDGE

Overview

Answer 15

1) From sub-courts to High Court

2) From sub-court to another sub-court

Question 16

TRANSFER OF CASES BY MAGISTRATES OR SC JUDGE FROM SUB-COURTS TO HIGHER COURT

Overview

Answer 16

1) The law & scope
2) Meaning of “Magistrate”
3) Consent of PP to transfer to lower court

Question 17

TRANSFER OF CASES BY MAGISTRATES OR SC JUDGE FROM SUB-COURTS TO HIGHER COURT

The law & scope

Answer 17

1) The law:
- S.177
2) Scope:

• can be done by application from PP or by the Magistrate or SC if he desires.
• Magistrate shall stay the proceedings and transfer the case to such a higher court, i.e. only vertical transfer is allowed.

Question 18

TRANSFER OF CASES BY MAGISTRATES OR SC JUDGE FROM SUB-COURTS TO HIGHER COURT

Meaning of Magistrate

Answer 18

PP v Tengku Abdul Aziz:

• “Magistrate” under S.177 includes Sessions Court judge,

Question 19

TRANSFER OF CASES BY MAGISTRATES OR SC JUDGE FROM SUB-COURTS TO HIGHER COURT

Consent of PP to transfer to lower court

Answer 19

PP v Ho Huan Teong (CA, 2001):

• Where PP has charged a person for a criminal offence at Sessions court, SCJ does not have the power to transfer the case to Magistrate for trial without consent of PP

Question 20

TRANSFER OF CASES BY MAGISTRATES OR SC JUDGE FROM SUB-COURTS TO ANOTHER SUB-COURT

Overview

Answer 20

1) The law & scope
2) Which court
3) Test for transfer

Question 21

TRANSFER OF CASES BY MAGISTRATES OR SC JUDGE FROM SUB-COURTS TO ANOTHER SUB-COURT

The law & scope

Answer 21

1) The law:

• S.99 SCA + Para. 3 3rd Schedule;
• S.104 SCA

2) Scope of S.104 SCA - Manokaran & Anor v PP
- S.104 empowers a transfer by a transferor court, as opposed to transferee court.
3) Scope of Para. 3(2) Third Schedule - Manokaran & Anor v PP
- Para. 3(2) empowers a Sessions or Magistrates’ court on application or of its own motion to transfer any proceedings to another court of co-ordinate jurisdiction.

Question 22

TRANSFER OF CASES BY MAGISTRATES OR SC JUDGE FROM SUB-COURTS TO ANOTHER SUB-COURT

Which court

Answer 22

PP v Mohamad bin Wahab:

• The court to which a case can be transferred will be determined by the court making the order for transfer.
• i.e. Magistrate may order transfer only to another MC.
• i.e. SCJ may order transfer only to another SC.
• i.e. only horizontal transfer is allowed.

Question 23

TRANSFER OF CASES BY MAGISTRATES OR SC JUDGE FROM SUB-COURTS TO ANOTHER SUB-COURT

Test for transfer

Answer 23

Manshor bin Omar & Anor Application v PP

• phrase “ where the interests of justice so require “ means that a sessions judge, in ordering a cause or matter to be transferred to any other Sessions Court, must have the requirements of fairness and justice in his mind.

Question 24

TRANSFER OF CASES BY HIGH COURT JUDGE

Overview

Answer 24

1) From High Court to other High Court
2) To or from Subordinate Court
3) On specific grounds

Question 25

TRANSFER OF CASES BY HIGH COURT JUDGE FROM HC TO OTHER HC

The law & scope

Answer 25

1) The law:
- S.25(2) CJA + Schedule
2) Scope - PP v Lim Shui Wang:

• power to transfer a case under S.25(2) is subject to the discretion of the AG under Art. 145(3) to choose which forum to try the accused.
• Art. 145(3) overrides the power of the HC to transfer.

Question 26

TRANSFER OF CASES BY HIGH COURT JUDGE TO OR FROM SUBORDINATE COURT

The law & scope

Answer 26

1) The law:
- S.25(2) CJA + Schedule
2) Scope - PP v Lim Shui Wang:

• power to transfer a case under S.25(2) is subject to the discretion of the AG under Art. 145(3) to choose which forum to try the accused.
• Art. 145(3) overrides the power of the HC to transfer.

Question 27

TRANSFER OF CASES BY HIGH COURT JUDGE ON SPECIFIC GROUNDS

Overview

Answer 27

1) The law & scope
2) Test to transfer - S.417(1)
3) Discretion to make order - S.417(2)
4) To where to transfer - S.417 (aa), (bb) & (cc)
5) Grounds to transfer - S.417(1)(a), (b), (c), (d), (e)
6) Procedures for application to transfer

Question 28

TRANSFER OF CASES BY HIGH COURT JUDGE ON SPECIFIC GROUNDS

The law

Answer 28

1) The law:
- S.417
2) Scope - PP v Su Liang Yu:
- S.417 does not give the power to transfer a case from HC to a subordinate courts, i.e. cannot go down.

Question 29

TRANSFER OF CASES BY HIGH COURT JUDGE ON SPECIFIC GROUNDS

Test to transfer

Answer 29

1) The test - S.417(1):
- “Whenever it is made appear”.
2) Threshold - Najib Razak v PP (FC, 2019):

• The threshold is very low by virtue of the language used in s. 417(1) - “when it appears to the High Court” instead of “if the court is satisfied” which require further consideration of the matter.
• OTF, it is held that it is expedient in the end of justice to transfer the seven charges on the court’s own initiative as the charges might be registered in a different High Court had they gone through the registration route which means a new trial date would have to be fixed depending on the court’s available dates whereas the dates have been fixed in the present High Court several months back in August 2018.
• This would further delay the proceedings which would be against public interest due to the seriousness of the cases.

3) Threshold - Yong Choo Kiong v PP (HC, 2020):

• Suatu permohonan di bawah ss. 417(2) dan 417(1)(cc) bagi memindah perbicaraan jenayah dari Mahkamah Rendah ke Mahkamah Tinggi tidak semestinya akan dibenarkan walaupun ia dipersetujui oleh kedua-dua pihak pendakwaan dan pembelaan.
• Mahkamah dalam melaksanakan kuasa kehakimannya masih perlu meneliti merit permohonan dan membuat keputusan yang sewajarnya.
• Dalam kes di mana pemohon dipertuduh di bawah s. 376 Kanun Keseksaan dan pendakwaan berhasrat untuk menggunakan peruntukan-peruntukan Akta Perlindungan Saksi 2009 bagi membolehkan saksi memberi keterangan secara “video link” dan atau “in camera”, halkeadaan itu sahaja tidak mewajarkan perbicaraan dipindah ke Mahkamah Tinggi.
• Ia tidak membangkitkan persoalan undang-undang yang luarbiasa, sukar atau kompleks dan dengan itu gagal memenuhi “threshold” yang ditetapkan oleh s. 417(1)(b) KTJ.

Question 30

TRANSFER OF CASES BY HIGH COURT JUDGE ON SPECIFIC GROUNDS

Discretion to make transfer

Answer 30

1) The law - S.417(2):

• report by sub-courts;
• application by PP or accused;
• in suo moto.

2) Scope of S.417(2) - PP v Lim Shui Wang:

• High Court may transfer a case on the report of the lower Court or on an application of the Attorney General or on its initiative, subject to two restrictions.
• First, the High Court may do so only for the reasons stated in paragraphs (a) to (e) of subsection 417; and
• Secondly, the High Court may transfer a case only from a subordinate Court to another subordinate Court or to itself, but not from itself to subordinate Court.

Question 31

TRANSFER OF CASES BY HIGH COURT JUDGE ON SPECIFIC GROUNDS

To where to transfer

Answer 31

1) The law - S.417(aa)-(cc)
2) Scope:

• (aa)
• (bb)
• (cc) Any particular case be tried before HC:

– DSNR v PP [8 CLJ 293] FC:

• The Public Prosecutor has power under the law and constitutionally to issue a certificate requiring a subordinate court to transfer to the High Court any criminal case which is triable by and pending before it.
• With the power to issue comes the power to withdraw.

Question 32

TRANSFER OF CASES BY HIGH COURT JUDGE ON SPECIFIC GROUNDS

Grounds to transfer

Answer 32

1) The law:

S.417(1)(a)-(e)

2) Scope:

• (a)
• (b) difficult questions of law:

Wong Hong Toy v PP:

• Difficult to invoke;
• the Magistrates now are all legally qualified and there is hardly any question of law that cannot be dealt with by them.

(c)

(d)

(e)

Question 33

TRANSFER OF CASES BY HIGH COURT JUDGE ON SPECIFIC GROUNDS

Procedures for application for transfer

Answer 33

S.418:

• Must be supported by affidavit except for application by PP.

Question 34

TRANSFER OF CASES ON CERTIFICATE ISSUED BY PP

Overview

Answer 34

1) The law & scope
2) Effect of transfer
3) Withdrawal of certificate
4) Exercise of power
5) Discretion not to transfer
6) Cases where it applies

Question 35

TRANSFER OF CASES ON CERTIFICATE ISSUED BY PP

The law & scope

Answer 35

1) S.418A

2) Art. 145A

Question 36

TRANSFER OF CASES ON CERTIFICATE ISSUED BY PP

Effect of transfer

Answer 36

Abdul Ghani bin Ali & Ahmad & Ors v PP:

• The trial in the case shall be held in accordance with the procedure under Chapter XX of the CPC.
• i.e. HC trial

Question 37

TRANSFER OF CASES ON CERTIFICATE ISSUED BY PP

Withdrawal of certificate

Answer 37

PP v DSNR:

• power to withdraw is by virtue of Art. 145(3) of the Federal Constitution.
• With the power to institute, comes the power to withdraw the certificate.
• There is no prohibition on the PP to withdraw the certificate and the concept of functus officio has no application at all.

Question 38

TRANSFER OF CASES ON CERTIFICATE ISSUED BY PP

Exercise of power

Answer 38

S.418A(2)

• Cannot be done by DPP or SG.
• Must be exercised by PP personally.

Question 39

TRANSFER OF CASES ON CERTIFICATE ISSUED BY PP

Discretion not to transfer

Answer 39

1) The law - S.418A(3):
- No discretion NOT to transfer.
2) Whether decision not to transfer is appealable - PP v Datuk Haji Wasli:

• SC judge refused to comply with the certificate issued by the AG.
• HC held that the refusal to transfer is not an appealable order.
• The implication of this decision is it seems to suggest that subordinate courts have discretion to reject requests for transfer.

FROM THE JUDGMENT:

• The terms “judgment”, “sentence” or “order” appearing in s. 307(1) of the CPC must necessarily refer to a final order resulting in the conviction or acquittal of the accused person. In the instant case, no such order could possibly be made as the trial proper had yet to commence.
• The rejection of an application to transfer the cases to the High Court in Kuala Lumpur could not be said to have finally disposed of the rights of the parties.
• The right of the Public Prosecutor to prosecute the respondent on the five criminal charges remained intact. - The appellant’s argument suggesting that the order of the learned Sessions Court judge in refusing to comply with the certificate issued by the Attorney General under s. 418A of the CPC had disposed of the rights of the Attorney General was simply untenable.
• The issue on the transfer of cases was purely procedural and non-appealable.
• The respondent’s preliminary objection was thereby sustained and this court directed that the cases be heard before the Sessions Court judge in Kota Kinabalu on the dates already fixed for trial ie, from 3 to 31 October 2005.

Question 40

TRANSFER OF CASES ON CERTIFICATE ISSUED BY PP

Cases where it applies

i.e. whether it is unconstitutional

Answer 40

1) The law - S.418B:

• an accused has not pleaded guilty; and
• no evidence against him has been adduced.

2) whether contravenes Art. 8 -Datuk Harun bin Hj Idris v PP:

• S.418A is applicable to all criminal cases triable in subordinate courts;
• It would be different if S.418A was specifically enacted to apply to Datuk Haji Harun’s case only and to no other accused person.
• As such, it does NOT contravene Art. 8, i.e. equality before the law.