Adjournments of criminal proceedings

To “adjourn” a proceeding or matter is, according to Dictionary.com, is to “postpone, suspend or transfer proceedings”. For a lawyer conducting criminal proceedings before Malaysian courts, to adjourn such proceedings, for a short or longer period of time, may sometimes be expedient for him or her, especially in situations where he or she is caught off guard by what has transpired during a trial. However it is generally accepted that when granting an adjournment, courts are bound to ensure the avoidance of hardship to the parties involved, particularly when an accused who has yet to be found guity for the crime(s) that he or she is being charged with, is still languishing under remand. In such a situation, frequent adjournments would indeed be unjust and from the view of the Prosecutor, the effluxion of time would most certainly affect the ability of his or her witnesses to recall facts. It was said in the case of PP v Tanggaah [1972] 1 MLJ 207 by Sharma J that the longer a period is allowed to elapse from the time of the incident to the the time of giving evidence in court, the greater the chances are for confusion to occur and for truth to be obscured.

This object of this article is to consider the law for the time being in force concerning adjournments of criminal proceedings before Malaysian courts.

Section 259(1) of the Criminal Procedure Code provides that if from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn any inquiry or trial the court may, by order in writing, from time to time, postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable. This power provides for adjournments to be granted arising from two situations, namely the absence of a witness, and/or other reasonable causes.

The Malaysian courts have always upheld the right of either party, be it the Prosecution or the Defence, to adjourn proceedings on the basis of absence of witnesses. In Tan Foo Soo [1967] 2 MLJ 19 it was said that every latitude must be given to an accused to defend his case and call witnesses in advance of his or her defence.

For reasonable causes, however, much would depend on how the court concerned percieves the situation. Situations are in practice assessed on a case by case basis and thus it would be difficult to state with confidence what would or would not constitute reasonable cause. Some common instances of what courts have accepted as constituting reasonable cause, however, are illness, the need to complete investigations, and situations concerning the counsel conducting the matter before the court.

Illnesses of the lawyers conducting proceedings before the court are more often then not always accepted as consituting reasonable cause, whether in the case of the Prosecution (as illustrated in the case of Chi Ah Chong [1953] MLJ 101) or the Defence (as in the case of Mohd Ekram [1962] MLJ 129). However, any adjournment granted in this situation would not be automatic and the lawyer is required to adduce for the court’s inspection a medical certificate to that effect. However, illnesses that occur suddenly have also been held to be reasonable cause, without the need to adduce an MC.

The need to complete investigation is seldom regarded as reasonable cause, as an incomplete investigation indicates that the Prosecutor has yet to prefer a charge against the accused, and so renders a proceeding against him or her groundless in law. Tan Kim San [1980] 2 MLJ 98. In such a situation, the court would be duty bound to acquit the accussed pursuant to section 173(g) of the Criminal Procedure Code. However, when investigations are completed and the adjournment sought is merely to trace witnesses or to complete service of documents such as medical or chemist reports, then the court would consider these to be within the scope of what constitutes reasonable cause. Perera [1977] 1 MLJ 22.

In situations concerning lawyers or counsels conducting trial, adjournments are not usually given for the benefit of counsels personally but for the parties they represent. An accused may need his case adjourned in situations where the accussed is seeking to retain new counsel following the discharge of his previous one, or when newly appointed counsel requires time to familiarise him or herself with his client’s case. The position of the courts with respect to situations such as these has been mixed. In Por Choo Aik [1993] 2 MLJ 131, it was held that the court must be firm in dealing with an application for adjournment and must only grant such adjournment on reasonable grounds. It is not reasonable grounds, for example, for the accused to appoint counsel at the last moment and then pray for adjournment. This was also the position in Lee Fok San [1963] MLJ 371 when the accused changed his counsel for the fourth time and the court rightly rejected his application on grounds of unreasonableness.

In the case of Kahar Tong [1992] 4 CLJ 1865 the view was that when the accused has been given sufficient time to seek legal representation and his counsel accepts brief at the last minute, he or she should be prepared to proceed with trial or at least not complain when the court rejects his or her request for adjournment. However, the court would be prepared to moderate such strictness in situations where the need to appoint new counsel arises as a result of the sudden discharge of the accused’s previous counsel. Another valid reason, perhaps, could be when the accused is too poor to engage counsel by his own means and has to rely on the Bar Council’s Legal Aid or the newly established Yayasan Bantuan Guaman Kebangsaan (YGBK or National Legal Aid Foundation) and when these organisations have yet to fully process the accused’s request for legal representation and assign him or her a defence counsel. In Awaluddin Suratman v DPP [1992] 1 MLJ 416 the court held that although applications for adjournment are dealt with on a strict basis, the court owes a duty to ensure that the accused enjoys the benefit of having counsel properly able to act on his or her behalf and in cases where the counsel is newly retained following the sudden departure of the previous counsel, a short adjournment would further the interests of justice as counsel would need notes of evidence to be properly prepared in order to safeguard the interests of the accused.

A court is never bound to grant adjournment every time a request for one is made. Bakar Ahmad [1968] 4 MC 294. A counsel when engaged must be prepared to discharge their briefs on the days that have been fixed for trial Mohd Abdullah [1980] 1 MLJ 201. A number of propositions were stated in the case of Mokhtar Abdul Latif [1980] 2 MLJ 51. They are, firstly, that as a general rule, trial dates are fixed at the convinience of the court and are given on a first come first serve basis. Secondly, there must be a good and cogent reason for adjournment and counsel must not accept briefs when they clash with days that have been fixed for trial. In the case of Sharma Kumari [2000] 6 MLJ 282, an application for adjournment on the basis that counsel had a matter before another court was not accepted on grounds that it would enable counsel to select which briefs to prefer in the event of a clash.

All in all, it can be summarised that Malaysian courts jealously guard against the propensity to grant adjournments at whim. However, when cogent reasons in support of such requests made are within the bounds of ordinary reason, there is nothing to prevent the courts from exercising their power in favour, provided the cause of justice is further advanced.

Stay tuned for our article on adjournments of civil proceedings to follow in due course and thank you for your faith in Reading Law.

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