Reading Law

In this article we will discuss the jurisdiction of the courts in Malaysia with respect to criminal matters. Before discussion can commence however we need to look at the hierarchy of Malaysian courts, which can breifly be illustrated by the following diagram;

Going by the diagram above, quite obviously the lowest court that exists is the Penghulu’s court (with respect to Peninsula Malaysia) and the Native’s court (in the case of Sabah and Sarawak). This is followed by the Magistrates’ courts (consisting of First and Second class Magistrates) and the Sessions court. Together these courts constitute what are called the lower courts and are governed with reference to the Subordinate Courts Act 1948 (formerly the Courts Ordinance, 1948).

Above the courts hereto mentioned, there is the High Court, the Court of Appeal and finally the country’s apex court, the Federal Court. These are superior courts that are created by the Federal Constitution of Malaysia (specifically by Article 121 and the few Articles following) and organised by the Courts of Judicature Act 1964.

Having despensed with elaboration as to what courts exist in Malaysia we will proceed to examine the criminal jurisdictions conferred on each court in respect thereof. There exist three types of jurisdiction, firstly subject matter jurisdiction, secondly local jurisdiction, thirdly sentencing jurisdiction and finally extraterritorial jurisdiction. It is mainly the first and the third kind that concern criminal law. Common sense of course dictates that the lower courts would have more limits in terms of what subject matters they are able to ajudicate upon compared to the higher courts.

Previously, prior to 1978 in respect of criminal matters, the Judicial Committee of the Privy Council, UK was the apex court of Malaysia, like so many other Commonwealth realms. Those judgments made by the court while it was still a Malaysian court are still binding, see the decision of the Federal Court in Dalip Bhagwan Singh v PP [1998] 1 MLJ 1.

There is also a seperate Court for Children constituted under the Child Act 2001. This court replaced the Juvenile Court constituted for trying minors previously.

First we shall start with the Penghulu’s Court. Section 95 of the Subordinate Courts Act 1948 states that the penghulu shall have jurisdiction to try offences of a minor nature, enumerated in his Kuasa, and can impose a fine of not more than RM25 (Section 96). The offender must be one of an Asian race and able to speak the Malay tongue. The offender also has a right to be tried by a Magistrate instead (Section 95(3)).

When talking about the Magistrates’ Court, one must bear in mind that there exist Magistrates of two types, First class and Second class. The jurisdiction of offences to be tried by the two are of course, different. The jurisdiction of the Second class Magistrate, contained within section 88 of the Subordinate Courts Act 1948, is with respect to trying offences punishable with a term of imprisonment not exceeding twelve months or punishable with fine only, and sentencing to a term of not more than six months jail or a fine not exceeding RM1,000 (Section 89). Should the Second class Magistrate opine that he does not have enough in terms of jurisdictional or sentencing power, he may take the necessary steps to adjourn the case for trial  by a First class Magistrate, as provided for in the proviso to section 88 of the Act.

The First class Magistrate of course, has much more in terms of sentencing and jurisdictional power, and these are provided for within sections 87 and 85 of the Subordinate Courts Act 1948 respectively. The First class Magistrate is vested with the power to try offences punishable with a term of imprisonment not exceeding ten years or punishable with fine only, as well as the power to sentence to a term of imprisonment not exceeding five years or a fine not exceeding RM10,000 or whipping not exceeding 12 strokes, or any combination of the three. There are also exceptions to the limitation on the First class Magistrate’s power. The proviso to section 87(1) for example, states that the Magistrate may award in excess of the power proscribed where any law gives him the authority, and some examples include section 118 of the Customs Act 1967, section 41 of the Dangerous Drugs Act 1952 and section 6(3) of the Betting Act 1953 (formerly the Betting Ordinance, 1953 or Ordinance No. 47 of 1953) where the Magistrate has power to impose a fine of not less then RM 20,000 and not more than RM 200,000 and up to five years imprisonment or both. The exercise of this power was seen in the case of Cheong Ah Cheow v PP[1985] 2 MLJ 257 and the case of PP v Yap Sin Peng [1986] 2 MLJ 66 wherein the Magistrate had awarded the maximum RM20,000 fine in both cases respectively, and these decisions were upheld. Section 87(2) gives the Magistrate further authority to punish in excess of his jurisdiction where the accused has previous convictions and provided that the Magistrate records his reasons for doing so. However, cases such as PP v Tengku Hitam [1962] MLJ 414 and Abdul Wahab v PP [1970] 2 MLJ 203 given the said provision an unnecessarily restrictive construction by stating that the Prosecution has a duty to choose with care as to which court possesses the requisite sentencing jurisdiction sought by the Public Prosecutor before going on to prosecute his case, and that section 87(2) can only be invoked when the case takes an unexpected turn and that the Magistrate’s basic sentencing powers are found wanting and furthermore knowledge of previous convictions can only be adduced after trial. With respect, such a construction does not serve the true intention of the provision which makes no mention of such limitations, and only serves to inhibit the Prosecutor’s unfettered discretion to prosecute in a Court of his choice under Article 145 of the Federal Constitution. It must be noted however, that a Magistrate does not have jurisdiction over Constitutional matters, as acknowledged in the case of Repco Holdings Bhd v PP [1997] 3 MLJ 681.

The criminal jurisdiction of other Malaysian courts, namely the Sessions Court, the High Court and the Court of Appeal will be examined in the next part.

To sue or not to sue. This was the opening line of a recent post detailing what a cause of action is and when it accrues. However it is equally relevant to this post for, should one choose to dwell on the question for too long, one might find it too late to even sue anymore!

This is because of the existence of what is called limitation period in law, that is, there is a definate time frame for one to commence legal action, and to wait beyond such a frame would render the cause defeated for being time barred, or more accurately, statute barred. The reason why the term statute barred is more accurate is because usually such periods are never proscribed in common law but imposed by statute, because the state considers it good that there should be a definate end to litigation after a while, tho the doctrine of laches under equity could have played a contributory role as well.

By the way, while this issue was discussed a little in the first mentioned post above, the purpose of this article is to expand and elaborate just a little bit more on what limitations of civil actions actually are.

In Malaysia, the principal statute of limitation is the Limitation Act 1953, which was first enacted as the Limitation Ordinance 1953 (F.M. Ordinance No. 4 of 1953) on 9 February 1953 and is based on the English Limitation Act 1939 which has since been replaced in Britain by the Limitation Act 1980. Section 4 of the Act cautions that nothing therein shall operate as a bar to any action or proceeding unless expressly pleaded.

The Act proscribes different periods of limitations depending on different types of causes of action that arise. For actions relating to torts and contracts generally the period is six years from when the cause accrued, imposed by section 6. The effect could be potentially unjust, as can be gleamed from the case of Loh Wau Lian v SEA Housing Corp Sdn Bhd [1984] 2 MLJ 280. In that case, a house was delivered late, namely, delivered on 7 November 1977 instead of 18 September 1975 as promised. The plaintiff claimed the agreed liquidated damages of 8% per annum for late delivery and filed his or her action on 9 September 1982. The defendant contended that the action should be considered time barred. The apex court agreed with the defendant.

Where there has been a fraud or concealment however, the Limitation Act 1953 provides for an exception. Section 29 of the Act states that where an action is based upon the fraud of the defendant or his agent or where any fact relevant to the plaintiff’s cause of action was delibrately concealed or where such an action is based on mistake, the time of six years does not run until the discovery of the fraud, concealment or mistake by the plaintiff. The effect of this section is plainly seen in the case of Lim Yoke Kong v Sivapiran s/o Sabapathy [1992] 2 MLJ 571 where the defendant’s insurers took great pains to conceal themselves from the knowledge of the plaintiff and thus the latter’s claim was not held statute barred as a result. Limitation periods also do not run where a plaintiff  is under disability until the expiry of such a disability under section 24 of the Act.

It should be noted that generally courts do not have power to enlarge the limitation period when asked (See Lee Lee Cheng v Seow Peng Kwang [1960] 26 MLJ 1) but there are circumstances where the limitation period itself is renewable, such as in the instance where debt is acknowledged or part payment is made in respect thereof under section 26 of the Act. Section 27 further qualifies this however, by stating that such acknowledgment must be in writing. The claimant is required to specifically plead this acknowledgment or else it would be struck out as held in the case of Mat bin Lim & Anor v Ho Yat Kam & Anor [1967] 1 MLJ 13.

Section 9 of the Act states that where an action is made in respect of land and the recovery thereof, the period of limitation would be 12 years. However this does not apply in delays for an action of specific performance, for example, because the owner would already have equitable title in the land. In Chee Hock Lai v Tan Swee Thai & Ors [1990] 2 MLJ 477 the plaintiff purchased land from an administrator of an estate and entered into possession more than 40 years before the filing of the action by the plaintiff. The plaintiff was never given title to the land despite several requests. Hence, the court opined that the delay was justified and ordered specific performance. In Ungku Sulaiman Bin Abd Majid & Anor v Director of Lands and Mines, State of Johor & Anor it was held that where property was wrongly acquired, time remained at large and the law of limitation would be inapplicable.

Section 20 of the Act bars action in respect of recovery of rent arrears after the expiry of six years on which they become due.

Although the Limitation Act 1953 is the principal statute of limitations within Malaysia, it is indeed not the only statute of limitation in force. Section 3 of the Act provides that the Act is inapplicable where the Government is involved and indeed the Government protects itself by virtue of section 2 of the Public Authorities Protection Act 1948 which reads;

Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced within the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect.

a) the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty six months next after the ceasing thereof…

This provision was tested in the case of Lee Hock Ning v Government of Malaysia [1972] 2 MLJ 12 where the Government failed to make good some payments in respect of some building contracts. The Government contended that such contracts were made persuant to a public duty and this the plaintiff’s claim was statuted barred with reference to section 2 of the Public Authorities Protection Act 1948. The court opined that non payment of monies owed was not in persuance of a public duty and accordingly allowed the claim.

By Bhag Singh

In court, one can always represent oneself. Beware, however, that it could be an uneven playing field.

In these times of economic downturn, it appears that more cases will be filed on account of loans taken and other financial obligations assumed.

When sued, not everyone is able to have the services of a lawyer. Without legal aid or the services of a pro-bono lawyer, it can be costly to engage counsel. In such circumstances, presenting one’s own case is an option.

A foreign paper reports that in the United States, more people are representing themselves in court. This has not only caused congestion but also raised questions of how just the outcomes are or can be.

Similarly, individuals here are likely to begin representing themselves if this is not already happening. Yet there does not appear to be a mechanism or system in place that can effectively help them.

As such, most of the time they are unprepared for the legal procedures. Unless guided, they are likely to fail to bring and present the right documents or evidence. In consequence, it is likely that they will fare poorly whatever the merits of their case.

Faced with such a situation, an individual can resort to various bodies that provide legal aid. However, this may be limited to giving advice or it may cover representation in court, depending on the nature of the problem, the individual involved and the provider of the assistance.

Except for criminal cases where a death sentence is involved, there is no firm assurance of obtaining legal assistance in terms of representation in court. This is particularly so in the case of civil disputes.

The Government has a Legal Aid Bureau, and the Bar Council also provides legal assistance.

However, where such assistance is available, there are usually limitations. This is because a person may be deemed eligible for the facility only if he passes a means test in terms of his assets and income.

Quite apart from litigation in the ordinary courts such as the Magistrates Court or Sessions Court, there are also situations where a person is required to appear personally and present his case whether making a claim or resisting one.

There are also special tribunals where a person may make a claim. In such instances, the aggrieved person may have the option or be limited to presenting the claim himself. In this case, the procedures are kept simple and formalities minimal.

Another example is where a complaint is made to the Industrial Relations Department following a person’s dismissal which he perceives to be unjustified. The complainant will be seeking to be reinstated in his position.

In such a case, there is no adjudication but merely steps to mediate and reconcile the parties. Yet it does constitute making a decision with somewhat serious consequences.

At first glance, it may appear that keeping lawyers out is a good idea. There will be no legal fees, and the matter can be kept simple and dealt with quickly.

However, this may not always be for the good of the individual. This is because the entity which he claims against will necessarily be represented by an officer. That person may be legally qualified and experienced in handling such matters. This, in a way, creates an uneven playing field.

Given the nature of the complaints that such tribunals or bodies deal with, the disadvantage to the individual may be ameliorated by the role played by the presiding officer in the light of the procedures involved.

On the other hand, when it comes to litigation in the ordinary courts, an individual is in a somewhat different situation when he appears himself. This is because there are more technicalities and procedures involved which need to be complied with.

In some countries, there are “self-help” centres in the courts where facilities exist to aid and guide such people. In some cases, court lawyers or the court staff provide help to the individual.

However, this is more likely, and the assistance more effective, if extended to litigants in relation to specific areas such as claims for debts, landlord tenant disputes and other areas where the issues are uncomplicated.

Like most parts of the world, we have not moved very far in this direction. Thus it is not always possible or practical for the court to guide the individual or assist him. Many people who cannot afford a lawyer or are not qualified for legal aid and find dealing with the procedures too daunting, just give up and let matters take their course.

This is certainly not an ideal situation. Organisations that provide legal aid could hold “information” sessions for the public to brief them on claims. A more detailed discussion of how such situations could be dealt with should come next.

(Copyright in this article vest with Bhag Singh and is reproduced here for non-profit study.)

Jim Carey as a lawyer in the 1997 film Liar Liar. The truth is few things give us lawyers a high more then a successful day in court.

To sue, or not to sue. That is a question that ponders the mind of the practising lawyer day by day. But, the truth really is, that few things delight lawyers more than having the opportunity to sue. Litigating, besides being part of the lawyer’s source of bread and butter, also gives the opportunity for the lawyer to hone his literary and oratory skills, and nothing gives a better high then a successful day in court.

But before one can even sue, one needs to bear in mind the procedures involved. And none is a procedure more important then having a valid cause of action.

A cause of action has been defined in various cases from being “every fact which is material to be proved to entitle the plaintiff to succeed” in Cooke v Gill (1873) LR 8 CP 107 to “every fact which it would be necessary to support his right to the judgment of the court” in the case of Read v Brown (1888) 22 QBD 128.

Some instances of questionable causes of action might make the subject matter clearer in the following cases. In Taib bin Awang b Mohamad bin Abdullah [1983] 2 MLJ for example, the plaintiff was convicted in the Kadi’s court and he appealed. But before his appeal could be heard he commenced an action for malicious prosecution and it was so held that since the appeal has yet to be heard, and the issue had yet to be disposed of, how could malicious prosecution be established? The cause of action was therefore premature. In the case of Sio Koon Lin v SB Mehra [1981] 1 MLJ 225 the plaintiff commenced an action for recovery of arrears that where in fact not yet due at the time of the claim. Needless to say the claim was thrown out. A similar situation occurred in Simetech (M) Sdn Bhd v Yeoh Cheng Liam Construction Sdn Bhd [1992] 1 MLJ 11.

A valid cause of action also depends on other factors, such as whether the claim would be made within the proscribed time. Malaysia’s general statute of limitations is the Limitation Act 1953. Section 6(1) of the Act says that action for breach of contract or a tort are six years from the date on which they accrue.

The case of Sivapira v Lim Yoke Kong [1992] 2 MLJ 381 illustrates the principle that a limitation period may not be used to aid fraud, or the enforcement of the equitable maxim that equity will not allow a statute to be used as an instrument of fraud. In this case the plaintiff was knocked down by the defendant on a motorcycle on the 1st day of April 1977, and then the plaintiff’s solicitors sought to identify the defendant’s insurers but to no avail until the 28th day of March 1984, that is, when the six year limitation period had passed. The defendant predictably alleged that the claim was time barred. The High Court held that the defendants had wilfully concealed themselves from the knowledge of the plaintiff and thus the case came under fraud as defined in section 29 of the Act. The plaintiff’s claim therefore, was not time barred after all. It must be noted at this point that failure to add a party to the action does not come within section 29 of the Act as illustrated in the English case of RB Policies v Butler (1950) 1 KB 76 where the theif of a car stolen in 1940 was only identified that year and so the claim was time barred.

There are limitation periods proscribed by other Acts of Parliament as well. Section 7(5) of the Civil Law Act 1956 for example states that in a dependency claim where the negligent act had caused the death of a person, the period of limitation shall be three years (a bit harsh and unfair, isn’t it?) and section 2 of the Public Authorities Protection Act 1948 provides that where public authorities act in the persuance of any public duty, the period of limitation where any action accrues shall be limited to 36 months. In the case of Lee Hock Ning v Government of Malaysia [1972] 2 MLJ 12 the non-payment of monies due under a series of building contracts entered into between the appellant and the Government of Malaysia was not in persuance of any public duty and therefore the relevant provision of the Act did not apply. In the Railways Act 1991 it is proscribed that any suit involving the railway authorities shall be limited to three years.

Lastly one must consider whether one has an interest in the subject matter one sues in. The judge in the case of Government of Malaysia v Lim Kit Siang [1988] 1 CLJ 219 said that every legal system has a built in mechanism to protect its judicial process from abuse by busy bodies, cranks and other mischief makers by insisting that a plaintiff should have a special interest in the proceedings he institutes. This takes the form of a nexus between himself and the other party and is known as a locus standi. This is demonstrated clearly in the case of Atip Bin Ali v Josephine Doris Nunis [1987] 1 MLJ 82 where one woman filed a suit against a former chief minister of a certain state in Malaysia for breach of promise to marry and later discontinued the suit. The members of the political party of that former chief oddly believed that she was insulting their honour, and sued for defamation. Luckily defamation was held to be personal to the ex-minister involved, and not to the members.