Adjournments of criminal proceedings

To “adjourn” a proceeding or matter is, according to, 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.

Criminal sentencing principles (Part 1)

The jurisdiction and authority of a criminal court judge to pass sentence in Malaysia can be found within various statutes, not least Article 121 of the Federal Constitution, as well as section 87 of the Subordinate Courts Act 1948 in respect of First Class Magistrates’ Courts, section 64 of the same Act in respect of Sessions Courts, and section 22(2) of the Courts of Judicature Act 1964 in respect of the High Court. According to section 173(f) and 173(m) of the Criminal Procedure Code (section 180 when the Court is a High Court), upon finding the accused guilty, it shall sentence according to law.

It was said by Hashim Yeop Sani J in the case of PP v Loo Choon Fatt [1976] 2 MLJ 256 that while courts generally exercise a discretion when they pass sentence, these ought to be within well established judicial principles and this article will attempt to identify what those are. Split into four parts, the first will discuss the factors to be considered in assessing sentence, the second in fixing sentences, the third in passing such sentences and lastly, the fourth part will identify the kinds of sentences that are in force within Malaysia, and the considerations to be had when the law proscribes for them to be applied.

The court when assessing sentence takes into account the nature of the offence, the circumstances of the commission, degree of deliberation, public interest, the plea entered, the age, the background and other similar factors. But there must be some proportion between the offence and the penalty. It must be proportion to the guilt of the offender and the nature and gravity of the offence. Each sentence must be an individual one, personal to the offender, assessed with regard to his moral and financial circumstances and the nature of the offence even when public interest demands a deterrent sentence to be passed, each case must be judged according to its own individual merits. These considerations may be categorized into three, namely public interest, circumstances in which the offence was committed and the background of the offender.

1. Public interest

Public interest is not necessarily the prime consideration in assessing sentence but it is an important one. Another thing to remember is that a major element of public interest is that it is not only justice for the accused but also justice for the society. Society through the courts must show its abhorrence to the occurrence to a particular type of crime and the only way the courts can show this is by the sentence they pass, as held in the case of R v Sargeant [1974] 60 Cr App R 74 by Lawton LJ.

Although it was said in Kenneth John Ball [1951] 35 Cri App Reports 164 that the first and foremost consideration is public interest, it was however added in New Tuck Shen [1982] 1 MLJ 27 that public interest varies necessarily according to time, place and circumstances What is public interest in one place may differ in another place and when passing sentence in public interest, the court bears in mind the theories of sentencing, the principles of which are namely retribution, deterrence, prevention and reformation.

Retribution as an object in sentencing is now said to play no part and the courts have since progressed from an ‘eye for an eye’ type of justice or to exact from victims of aggression their pound of flesh. However there is another aspect of retribution emphasized by the courts and it is to show abhorrence of particular types of crimes and criminal conduct in the length of the sentence passed. Abdullah Mohd Am [1988] 2 MLJ 368

A deterrent sentence means a sentence higher than what would normally be passed not necessarily because of the facts of the case but in order that others should be dissuaded from commission of offences of a similar kind. This necessarily involves some unfairness to the accused, since in receiving such a sentence, he is being punished more than what he would have been, having been assessed on the facts alone. This may not necessarily be incorrect because past sentences may have been too low and the time may have come for imposing those type of sentences. Yau Kau Kui [1989] 2 MLJ 139. General deterrent sentences however are of little value where offences are unpremeditated, committed on the spur of the moment.

The principle of prevention is effected by taking away from the offender the power of offending. This element is reflected in sentences such as life imprisonment and minimum sentences and orders of police supervision, the last of which serves to inhibit the offender from offending.

Reformation as a principle is generally held in favor in public interest in that it serves public interest by helping the offender turn to honest living.Teo Siew Peng [1985] 2 MLJ 25

2. Circumstances in which the offence is committed

It is universally recognized that in fixing sentence, the court would consider the nature and circumstances. Mohd Jalani [1997] 5 MLJ 551. This would encompass within its ambit its manner of commission, the type and nature of offence and rampancy of the offence.

Circumstances surrounding the manner of offence is a principle determinant and is best understood when the facts of the particular cases are known such as in the cases of Safiah Abdullah [1983] 1 MLJ 324, Joginder Singh [1984] 2 MLJ 133 and Imran Nasir [1987] 1 MLJ 166. The facts of these case were particularly repulsing and justifies the court in adopting a deterrent sentence. In Safiah Abdullah, two young offenders strangled to death a man who they had already mortally wounded. In Joginder Singh, the accused had framed the owners of two rival restaurants for possession of drugs while in Imran Nasir, the accused was a policeman who raped a young girl in a police station. Sometimes the circumstances of the case can operate as a mitigating factor. In the case of Seah Ah Kew [1974] 1 MLJ 125  based on the facts where the victim of a kidnap was not ill treated, the court did not impose a death penalty for the offence under the Kidnapping Act. Circumstances of the case include whether the offence was premeditated as in Vanaga Mootho [2003] 1 CLJ 78  and whether the accused was intoxicated as in Raja Izzaudin Shah [1979] 1 MLJ 270.

There are certain offences that the courts view seriously. Among offences that normally attract custodial sentence, even for a first offender and despite a plea of guilty would be offences of house breaking because of the traumatic effect on the occupiers. Hassan Nordin [2002] 3 CLJ 495 Other offences would include breach of trust by people holding relatively high positions in society such as in Tan Koon Suan [1987] 1 MLJ 18 and possession of firearms and ammunition because of what was said in Chong Kwong Huah [1981] 1 MLJ 316 that a man who carries a gun has a capacity to use it and it is too easy to make a transition from possession to use with disastrous results.

The court is entitled to take judicial notice of what is notorious and prevalent. Mustapha Abdullah [1997] 2 MLJ 45. For example, this could include taking notice that the area in which the offence was committed in is notorious for that particular offence.

3. Background of the offender

In sentencing the court requires knowledge of background of the accused to strike a balance, so to speak, between the interest of the public and interest of the accused Mohd Fuad [2001] 5 MLJ 549.

There are a number of factors usually advanced to support a plea for leniency. However the court must balance these matters with other factors which may require consideration for severity. The position is best explained in Loh Oi Lin [1949] MLJ 120 that there are factors such as prevalence, difficulty of detection and injury to public revenue which operate in the direction of severity and others such as leniency to first offenders which operate in the other direction and where as frequently happens a number of these factors applied in one case. The court must balance them as best as it can. Among the factors more commonly advanced are age, antecedence, family hardship, conduct subsequent to the offence, impact of conviction, health, and delay in disposal of cases.

Age, particularly youth, is an effective mitigating factor and this is recognised in section 96(2) of the Child Act 2001 that a child aged 14 or above shall not be imprisoned if they can be suitably dealt with in any other way. However, where circumstances so warrant, the court would disregard the age of the offender particularly where the nature of the crime requires the dare, the dash and the defiance of youth in its commission Teh Ah Cheng [1976] 2 MLJ 186. Old age on the other hand is not a mitigating factor because if old age is accepted as an ingredient to light sentence, the court will give the wrong description to the public that old people are given special treatment if found guilty and by right, old age should make one more mature in taking power and experience Yahya Salaman [2006] 2 MLJ 475.

The fact the accused is a first offender is a consideration for leniency and provision is recognized in sec 173(a) and 294 that the court may proceed to buy over an offender because of his antecedence or that he is a first offender Winston Raja [1999] 1 CLJ 315. However the fact that the accused has a clean record may not necessarily operate as a factor in mitigation where there are no mitigation factors in the circumstances of the offence as in the cases of Garner [1973] 1 MLJ 106 and Leo Say [1985] 2 CLJ 155.

The view of the courts in relation to family hardship is that the accused is pleading hardship from the consequences of his own conduct and he should not expect to excite or harness any sympathy by taking the stance of a youth to kill his parents and then pleases in mitigation he is an orphan. Teh Ah Cheng [1976] 2 MLJ 186. However family difficulties have been recognized and given consideration in Mohd Hashim [1961] MLJ 11. The position of family hardship may be encapsulated in what was said in Amir Hamzah [2003] 3 AMR 626. The effect of the conviction on the accused’s family does not automatically become a mitigating factor. The accused cannot be allowed to commit offences only to hide behind the possible repercussions of a lengthy custodial sentence on his family to lighten the sentence imposed. The needs of the accused are far outweighed by issues of public interest.

A valid factor in mitigation is whether the accused regrets what he has done. There are many ways to show regret such as by cooperating in the investigations, pleading guilty and making amends with the victim of the crime such as paying of compensation. Kasavan Seenderan [1999] 1 CLJ 347. Restitution of property would also attract a lenient sentence Loo Cheng Hock [1988] 1 MLJ 316.

A person conviction suffers not only from loss of employment. He carries the stigma of being a convicted person and in assessing sentence, the court considers these factors a substantial part of the punishment. Vijaya Raj [1981] 1 MLJ 43. However these considerations was disregarded by the court in Datuk Haji Harun [1978] 1 MLJ 240 because of the impact on members of the bank who were poor people from rural areas and who expected their leaders not to touch their money entrusted to his care.

Health is another valid consideration and it was considered in the cases of Tay Chuan Beng [1989] 1 MLJ 403 and Dato Nala Karuppan [1999] 2 CLJ 59 but it was not considered in Liew Kim Yong [1989] 3 MLJ 323 who appealed not to be imposed whipping as part of the punishment for an offence of rape on the grounds that he was allergic to painkilling drugs consequential to the whipping.

The next part in will consider how sentences are fixed so stay tuned.

Criminal appeals and revisions in Malaysia

In this article the processes a case undergoes after determination on the first instance are discussed. There is after determination in the first instance on any criminal matter provision to courts of a higher jurisdiction by way of, firstly, an appeal and secondly, revision.

First we will discuss appeal. A two tier system of appeal is practiced. The first is that subordinate courts appeal in the first instance to the high court and then to the court of appeal. However appeals proceeding from the magistrate to the court of appeal must be with leave of the court of appeal and on a question of law. The second is that trials of the high court proceeds in the first instance to the court of appeal and then to the federal court.

The appeal is commenced by the filing of notice of appeal and after service of the grounds of judgment or the notes of evidence if requested for by the filing of the petition of appeal which shall contain particulars of law and fact as regard to which the trial court is alleged to have erred. Wirasingam [1958] MLJ 76. The procedure encompasses the filing of the notice and of the petition of the appeal. Within 14 days from the date of judgment, in the case of the notice, and in the case of the petition, 14 days after service of the grounds of the decision. There is no prescribed form used for the notice but where notice is against sentence specific reference should be made whether appeal is against extent or legality of the sentence. Specific reference would not only go to clarity but also to bring to notice of the magistrate what he is required to state in his grounds of decision.

While it is accepted that it does not invalidate a notice for it to merely say that appeal is against sentence, a clear form of notice is desirable. It must also be stated in the notice that the appellant is desirous of appealing.

In the case of Sarikei District Council [1997] 5 MLJ 328 the notice omitted the words “desirous of appealing” and stated “take notice that the Sarikei District Council, the complainant in these cases, is dissatisfied with the order of the honorable magistrate En. Awang dated 19 June 1995 dismissing the judges against the accused persons on the grounds that the proceedings against them had been a nullity. The appellant court found that the words “appeals to the high court against the said order” had been omitted after the word “nullity”. It was held the omission was material and that this had rendered the notice defective and bad in law.

The second document is the petition of appeal prescribed in Form 51 of the 2nd schedule of the CPC. Section 307(6) of the Criminal Procedure Code states that a petition must state the substance of the judgment appealed against containing definite particulars points of law or fact in regard to which the court was alleged to have erred.

Where the petition alleges that a conviction is against the weight of evidence, the petition must state in what way the conviction was against the weight. Ong Chee Ho [1933] MLJ 39. Where the allegation that the conviction was unreasonable or could not be supported having regard to the evidence, this must be shown in the petition. Ooi Teck Chien 1971 1 MLJ 51

The prescribed time limit for the filing of the documents are 14 days from the date of judgment with respect to the notice and14 days from service of the grounds of decision or where the notes of evidence have been requested for from the date having been informed the notes are available.

The grounds of decision is essential to the filing of decision because the grounds of appeal would be culled from the grounds of decision and/or the notes of evidence.

The calculation of the 14 days when the last day of the time period falls on a weekly or public holiday was discussed in the case of Kentucky Fried Chicken [1976] 2 MLJ 145 that the date which the sentence is passed is excluded and where the last day falls on a Sunday or weekly holiday, the last date to file would then be Monday, the next working day.

There is need to strictly comply with the prescribed time limit for the filing of the documents of appeal. This strict time limit is moderated by recourse to Section 310 where the order that substantial justice may be done, a judge may permit an appeal which is time barred. Section 310 is only invoked on application. An aid should be sought with all convenience speed. Only in exceptional cases would be rule be relaxed Nagalingam [1935] MLJ 29 and an application for an enlargement of time is not given as a matter of course. Jumari Mohd [1982] 1 MLJ 282

Section 310 is exercised at the court’s discretion. An exercise of this discretion depends on the facts and circumstances of each case. In Wirasingam [1958] MLJ 76 the view was that the applicant must satisfy the court that circumstances exist which justify an extension of time and that the applicant has a reasonable prospect of success on his appeal.

Identical views were expressed in Zulkifli Puasa [1985] 1 MLJ 461 where the court of appeal said “..there are 2 factors to consider on an application for an extension of time:

i) The length of the delay and whether it can be satisfactorily explained.

ii) Whether the out of time application is likely to succeed.

Where the delay is of short duration the court may if it thinks fit, disregard the delay even in the absence of satisfactory reasons but where a substantial amount of time has elapsed, say a month or more, an extension of time will not be granted as a matter of course without a satisfactory explanation. Where the delay is minimal, the court will still not grant an extension of time if the application for which the extension is sought is bound to fail. There must be an arguable case. However, even though the subsequent application may be likely to succeed as for example when a fellow prisoner’s conviction has been quashed, the court will not grant an extension of time as a matter of course. The entire circumstances would be considered.

Next we will discuss revisions. The powers of revision is contained in Sections 323 to 327 of the Criminal Procedure Code and are given to high court judges. Muhari Mohd Jani [1996] 3 MLJ 116 The object of revision is to confer on criminal courts a kind of supervisory jurisdiction to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of precautions or apparent harshness of treatment resulting on one hand in some injury to law and order or on the other some undeserved hardship to some individuals. Liaw Kwai Wah [1987] 2 MLJ 69

The power of revision must be used sparingly and exercised judicially. Sukma Dermawan [1999] 3 CLJ 361. Revision may only be exercised for good reasons and between the limits and spirit of the legislation. There can be no recourse to revision when the matter is appealable and no appeal is lodged. Mohd Dalhar [1995] 1 MLJ 645. The court will not act in revision where the matter is pending appeal. Soon Seng Sia Heng [1974] 2 MLJ 170. The court would not allow efforts to go around provisions which bar appeals by attempting to get cases reviewed unless there are obvious illegalities or miscarriages of justice and revision is not an alternative to an appeal.  Rajendran [2000] 4 MLJ 369

When the court acts in revision, it is not confined to matters raised by the parties alone. Yen Wing Lee [1994] 3 CLJ 453 In appropriate circumstances, the court would go into the deeper aspects of the matter to ensure substantial justice subsist between the accuser and the accused and also between the accused and others who might have suffered. The court is also not precluded from revision when the matter has been brought on appeal as long as it has come to its knowledge or even if the matter at hand did not arise from the record of proceedings.

There are many ways in which a court’s attention may be drawn to cases where the decisions may have to be revised through newspaper reports, through letters from members of the public, aggrieved parties or their relatives, through requests by magistrates or revision of decisions made and through formal applications. Muhari Mohd Jani’s case.

Commencing an action in a Malaysian court

Since we have already discussed what elements are needed to sue and the time limitations thereof, it is high time we also focus on the modes of commencing a process of suing before the Malaysian courts. There used to be various modes proscribed in two pertinent sets of Rules that governed civil procedure in Malaysia, the Rules of the High Court 1980 (“RHC”) made pursuant to the Courts of Judicature Act 1964 and the Subordinate Courts Rules 1980 (“SCR”) made pursuant to the Subordinate Courts Rules Act 1955. However, these have been recently repealed in favour of a unified set of Rules governing civil procedure, the Rules of Court 2012 (“RC”) made pursuant to both the 1964 and 1955 Acts mentioned, and these new Rules came into force on 1 August 2012. There are of course, other Rules governing civil procedure in other courts such as the Court of Appeal and Federal Court, but these need not concern us here for actions are not commenced at first instance within those courts.

By virtue of Order 5 rule 1 of the RC, there are 2 proscribed modes of commencing an action in the High Court, namely;

1. Writ (of Summons) – Generally for those actions involving hotly contested facts; and

2. Originating Summons – Generally faster and easier disposed of than writ, as no witnesses are called. For those actions based mainly on construction of written law and documents (such as contracts and wills).

Two former modes of commencing actions, namely the Originating Motion and the Petition, have been abolished with the aim of simplifying civil procedure by reducing the number of modes in which an action is commenced at the courts and are only retained for specific laws which are set out in Appendix C to the RC, such as proceedings for divorce under the Law Reform (Marriage and Divorce) Act 1976 and for admission as an advocate and solicitor under the Legal Profession Act 1976.

In respect of the Subordinate Courts, before, under Order 4 of the recently repealed SCR, there were 3 modes of commencing an action in the subordinate courts, namely by way of summons, originating application and petition respectively.  However these three have given way to the two remaining modes described above as well.

An originating summons (“OS”) is a Court document served by the plaintiff (or applicant if on appeal) on the defendant (respondant). It is indeed a convinient mode of starting an action, for evidence is usually given on affidavit without the need for witnesses and thus can be summararily disposed of in chambers as opposed to in an open court. It is also much cheaper compared to a writ.

It is mandatory, by virtue of Order 5 rule 3, to begin an action by way of OS where it relates to written law unless otherwise required by statute. Order 5 rule  4(2) states that is is “appropriate” to begin the action by OS when the proceedings concern issues likely to turn on the construction of any written law or any instrument made under any written law, or of any contract or document and there is unlikely to be any substantial dispute of fact. Every OS must include a statement on the questions on which the party commencing the action seeks the determination or the direction of the court or a concise statement of the relief or remedy claimed in the proceedings.

For those actions involving substantial disputes of fact, the correct mode of starting an application would be via the writ. According to Order 5 rule 2, certain actions are to be begun by writ. They are namely those concerning relief for torts committed other than trespass to land, those alleging dealings of fraud, those of breach of any duty, those of breach of promise to marry, and those where patents have been infringed. The writ is preferred here because substantial disputes of fact are likely to occur in cases of these nature, and thus witnesses would need to be called to establish or disprove such facts.

At this point perhaps it would be appropriate to consider cases where the wrong mode of commencing an action was chosen and the reaction of the Malaysian courts to such errors on the part of the plaintiff. In the case of Pesuruhjaya Ibu Kota Kuala Lumpur v Public Trustee & Ors [1971] 2 MLJ 30, the claim was for the cost of removing squatters occupying a certain plot of land, and the action was commenced by OS. The opposing party claimed that the mode was wrong as substantial disputes of fact were involved. Eventually it was decided by Raja Azlan Shah J that the dispute of fact (that is the number of squatters removed) was not material for the courts determination, as the amount disputed varied according to area, not the number of squatters involved, and so therefore allowed the mode of commencement via OS to stand.

In the case of National Land Finance Co-Operative Society Ltd v Sharidal Sdn Bhd [1983] 2 MLJ 211 a plot of land was considered conditionally sold upon the appropriate authority’s approval. That authority in fact did not approve of the sale, and the plaintiff contended that the sale had become void and proceeded by OS for a declaration to that effect. The court held that this was the right mode of action as the matter concerned the pure construction of the agreement reached between the parties privy to the sale.

The case of Ng Wan Siew v Teoh Sin [1963] MLJ 103 concerned one of which substantial disputes of fact turned, and Thompson J therefore said that this case ought not to have been commenced by OS but by writ.

According to Order 2 rule 1 of the RC, the court is not to nullify any proceedings based solely upon the ground that the wrong mode of commencing an action had been taken, but to take such steps as are necessary to rectify the damage done. Such actions would include, for example, ordering that affidavits filed are to stand as pleadings (when actions begun by way of OS ought to have been begun by writ) for example, and vice versa. The power to do this is conferred by Order 28 rule 8. This power was exercised in the case of Ting Ling Kiew & Anor v Tang Eng Iron Works Co Ltd [1992] 2 MLJ 217 where proceedings begun by OS were converted and deemed as if begun by writ so as to allow taking in oral evidence by witnesses. Unfortunately, in spite of the clear position of statute law on this issue, decisions of the court have been shown that it is quite willing to dismiss an action solely on the ground of wrong mode of commencement, such as it was in the case of Lee Phet Boon v Hock Thai Finance Corp Bhd [1994] 2 MLJ 448.

Last updated: 1 December 2012.

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.

Limitation of civil actions

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.

Being your own lawyer

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.)