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CRIMINAL

PROCEDURE I
Topic 1:
Introduction
Topic Objective & Learning Outcome
× Topic Objective: To give an ……… of the Criminal
Procedure Code and some of its preliminary provisions.

× Topic Learning Outcome (TLO): Student should be able


to analyze section ……….. of the CPC.
Criminal Procedure Code (Act 593) (Revised 1999)
 Main statute governing criminal procedure in Malaysia.

Lim Hung Wang [2011] 9 MLJ 752, HC


“In our country, criminal procedure law is codified in the
Criminal Procedure Code (Revised 1999) (Act 593) which
controls the entire process of criminal procedure from the
beginning i.e. with the commission of the offence to the
conclusion of the judgment for that particular case.”
 Object of CPC

Goh Keat Peng [2001] 3 MLJ 172, HC


“It is to be noted that the relevant provisions of the CPC have
been enacted with the primary purpose of


(Followed by COA in Sukma Darmawan Sasmitaat Madja
[2007] 5 MLJ 666
 CPC contains Procedural laws.

What is procedural law?


= law governing

= use to

# procedural law ( ) – e.g. CPC, ROC


# substantive law ( ) – e.g. contract law, criminal law
 Object of procedural law

Foo Yong Fong (1962) 28 MLJ 156, COA


“…They are designed to ensure that the issues to be determined
are fairly and clearly stated, so that … the accused in a criminal
case knows the case that he has to meet and is not placed in a
position of embarrassment.”
CPC
4 CPCs
(Act 593)

- CPC of the FMS - extended to the whole CPC of the FMS


- CPC of the SS M’sia in 1976 by CPC was revised in
- CPC of Sabah (Amendment and 1999
- CPC of Sarawak Extension) Act 1976 (Act (4/4/1999)
A324) (10/1/1976)
- repealed the other CPCs.
Important Amendments
(i) CPC (Amendment) Act 2010 Amendment Act 2012 (Act
A1422)
- amend s.172A, S.172B, s.172C,s.172D,s.172E,s.172F
- new s.172G
- new s.173 (m)(ii) - impact statement
- new s.183A

(ii) CPC (Amendment) Act 2012 (Act A1423)


- new S.51A - Discovery
- amend s.283
(iii) CPC (Amendment) Act (No.2) 2012 (A1431)
- S.116 on search and seizure
- new section 388, 390A, 390B, 390C, 455 – electronic
monitoring

(iv) CPC (Amendment) Act 2016 (Act A1521)


- came into operation on 1 March 2017, except s.17, 18 & 19.
- amend s.402B(1): no requirement of consent
- new s.425A: trial in absence of accused
- amend the First Schedule 
- electronic monitoring on bail
 Generally, the provisions are imperative (mandatory).

Secretary of State for Defence v. Warm / Reg. v. Warn


[1970] AC 394, 402, Lord Hodson:
" Procedural sections are usually mandatory and there is nothing
which points to the contrary in this case ".
(i) Capt. Kamarul Azman Jamaluddin v Lt. Col. Wan Abdul
Majid Abdullah [1983] 1 CLJ 227, PC (Reg. v. Warn)
(ii) Mersing Omnibus v Minister of Labour & Manpower
[1983] CLJ Rep 266  (Sec of State for Defence v. Warm)

What is the effect of non-compliance?


=

 e.g. Bunya Jalong [2015] 5 CLJ 893 – non-compliance of


S.163 (joint trial)
 However: There are circumstances where the provision is
regarded as

What is the effect?


- .

- curable under s.422 if does not cause failure of justice

e.g. Rossarin Nuekaew [2017] MLJU 1156, FC


– non compliance of S.402B (written statement)
Hee Nyuk Fook [1988] 2 MLJ 360
In our view the word “shall” appearing therein, though generally
taken as mandatory, does not mean to be so in every case. No
hard and fast rule can be laid down because it depends on the
facts and circumstances of a particular case, the purpose and
object for which such provision is made, the intention of the
legislature in making the provision and the serious
inconvenience or injustice which may result in treating the
provision one way of the other (see Interpretation of Statutes by
Bindra, 7th Ed, p.662).
‘Code’

Karpal Singh [1991] 1 CLJ Rep 183, SC


The Code, as its name suggests was intended to be an exhaustive
pronouncement of the criminal procedure… The pronouncement
and effect of the Code leave no lacuna under normal
circumstances.

 The provisions of CPC are exhaustive


 Courts cannot override the express provisions of the CPC
Karpal Singh [1991] 1 CLJ Rep 183 
“The inherent power apparently cannot be invoked to override
an express provision of law or when there is another remedy
available. Where the Legislature has provided a particular mode
of action or has vested an authority with powers to act in a
particular manner and has prescribed the conditions limiting the
scope of such action, the Court cannot act outside those powers
and conditions.”
 The provisions of the CPC cannot override any provision of
the CJA

In the event of inconsistency or conflict between this Act and


any other written law (e.g. CPC) other than the Constitution in
force at the commencement of this Act, the provisions of this Act
shall prevail.

Lorraine Phylis Cohen [1989] 2 MLJ 288, SC


 Marginal Notes
- An aid for easy reference and brief guide to the content of
the section.

Example:
Trial of offences under Penal Code and other laws
3. All offences under the Penal Code shall be…

Saving of powers of High Court


4. Nothing in this Code shall be construed…
o It is treated as part of the Act and may be referred to for
assistance in interpreting the statute

Re Tan Keng Tin [1932] MLJ 134, Terrell J held


“…as in the Colony, the marginal notes are treated as part of an
Ordinance and are discussed and even amended in Committee,
there would appear to be no reason why they should not be
referred to assist the interpretation of the section”.
 However, since the marginal note only provide a brief guide
to the content of the section, it is not mandatory for the
court to follow

Example:
The marginal note on S.294 states – “First offender”

In Yeong Yin Choy [1980] 2 MLJ 80, the court found that the
marginal note is misleading and does not project the true
purpose of the section. It was held that s.294 is not limited to
first offender.
Schedules:

Schedule 1 – 7 Columns – (1) PC Sections; (2) Offence;


(3)Seizable/not;(4)Summon/Warrant;(5)Bailable/not;
(6) Compundable/not; (7) Max Punishment

Schedule 2 - Forms 1 -55

Schedule 4 –
S.2
Approach in Interpretation of provisions in CPC
S.2(3):
• All words & expressions used herein [CPC] and
• defined in the PC/Police Act 1967 (PA),
• and not herein before defined [by CPC]
• shall be deemed to have the meanings attributed to them by
that Code [PC]/that Act [PA], as the case may be.
Abdul Ghani bin Jusoh [1981] 1 MLJ 25
Definition

 Seizable Offences -

 For PC offences: refer

 For Non-PC offences: refer that specific statute.


If silent – refer
 Non-seizable Offences -

 For PC offences: refer

 For Non-PC offences: refer


If silent – refer
S.3
Trial of offences under Penal Code and other laws
• All offences under the PC shall be inquired into and tried
according to the provisions hereinafter contained (CPC),
• and all offences under any other law shall be inquired into
and tried according to the same provisions (CPC)
• subject however to any written law for the time being in force
regulating the manner/place of inquiring into/trying such
offences.
 General rule:

Lim Hung Wang [2011] 9 MLJ 752

 Exception:

 Maxim ‘generalia specialibus non derogant


 Example of other Specific Statute with Procedure

Sedition Act 1948


Dangerous Drugs Act 1952 (DDA)
Customs Act 1967
Firearms Increased Penalties Act 1971 (FIPA)
Official Secrets Act 1972
Security Offences Special Measure Act 2012 (SOSMA)
Example:

Chew Siew Luan [1982] 2 MLJ 119 FC - DDA 1952


Loy Chin Hei [1982] 1 MLJ 31– DDA 1952

Chu Beow Hin [1982] 1 MLJ 135 FC


Mohd Firdaus Hadie [2016] 3 CLJ 488
 if a specific statute is silent on the specific procedure to be
followed, the procedure in the CPC shall be applicable.

Ayar [2010] MLJU 520


Koa Ban Siew (1948) 14 MLJ 54
Datuk Haji Dzulkifli [1982] 1 MLJ 341
S.4
Saving of powers of High Court
Nothing in this Code shall be construed as derogating from the
powers or jurisdiction of the HC.

 Known as

 The power / jurisdiction of HC is


 Other power & jurisdiction of HC not stated in the CPC is not
affected.
e.g.
- inherent power of court such as contempt of court
- HC jurisdiction under CJA such as revisionary power

 CPC guarantees that its provision does not derogate/detract


from the powers & jurisdiction inherent in HC & conferred
by any other law on the HC.
Saat Hassan [1988] 2 CLJ (Rep) 290
“This section expressly preserved the inherent jurisdiction of the
HC to make any order necessary to give effect to other
provisions under the Code or to prevent abuse of the process of
any Court or otherwise to secure the needs of justice.”

S Selvanathan [1994] 4 CLJ 818


It do not restrict/reduce the power of the HC
× Tan Boon Hock [1979] 1 MLJ 236
× Dato’ Mat Safuan [1991] 2 CLJ 1112
× Mohd Bandar Shah bin Nordin [2005] 2 MLJ 349

× Husdi [1980] MLJ 80


× Hari Ram Seghal [1981] MLJ 165
× Karpal Singh [1991] 2 MLJ 544
S.5
Laws of England, when applicable
× As regards matters of criminal procedure for which
× no special provision has been made by this Code/by any other
law for the time being in force (lacuna)
× the law relating to criminal procedure for the time being in
force in England shall be applied
× so far as the same shall not conflict / be inconsistent with this
Code and can be made auxiliary thereto.
 S.5 allows reference to law (CL & statute) relating to criminal
procedure for the time being in force in England

 Conditions:
(i)
(ii)

Karpal Singh [1991] 2 MLJ 544 SC


“S.5 of the Code is indicative of the principles to be applied by
local Courts.”
Example of Application of EL

Sanassi [1970] 2 MLJ 198


“The accused in this country was given a right to make an
unsworn statement from the dock because it is derived from the
Criminal Evidence Act 1898 of England as read with s.5 of the
SS CPC.”
Mohamed bin Jamal [1964] MLJ 254
Hari Ram Seghal [1981] 1 MLJ 165
Dato’ Mokhtar Hashim [1983] CLJ (Rep) 101
Re Kah Wai Video (Ipoh) Sdn Bhd [1987] 2 MLJ 459
Ong Lai Kim [1991] 3 MLJ 111
Hasibullah bin Mohd Ghazali [1993] 3 MLJ 321
Indian case law
 CPC was modelled on the Indian Code of Criminal Procedure
(Indian CCrP)

 Hence, Indian case law on the interpretation of the similar


provisions (in pari materia) serve as a useful guide.

Yeap Hock Seng @ Ah Seng v Minister of Home Affairs ,


Malaysia [1975] 2 MLJ 279