Criminal jurisdiction of Malaysian courts (Part 1)

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;

Courts Hierachy in Malaysia

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.