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.

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Happy New Decade 2010s

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Reading Law wishes all its readers a Happy 2010 as well as Happy New Decade 2010s. The ’00s showed a lot of legal changes on the Malaysian scene, and we hope to record the coming changes in this decade as well.

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GST set to be introduced in Malaysia

Following the tabling of the Goods and Services Tax (GST) Bill 2009 in Parliament recently, the Goods and Services Tax, otherwise known as GST, is set to make its début within Malaysia. The move to introduce GST was first announced during the tabling of the 2010 annual Budget.

If things are smooth sailing, the Bill could come into force by the middle of the year 2011, imposing a 4% rate on the sale of goods and services, replacing the 5% sale and services tax imposed currently.

The proposal is controversial for potentially being detrimental to the poor, and although the Malaysian Government has assured to allay such concerns by introducing it below the current sale and services tax rate, several have countered that the rate could be further hiked once the GST is introduced, as what had happened in Singapore which had introduced the rate at 3% only to bring it up to 7% later, as well as other countries such as Australia. In the United Kingdom, the GST is as high as 15%-17%. GST was slated to be introduced in Hong Kong in 2006 but was later cancelled following public opposition.

Reading Law will run an analysis or two on the GST and its potential impact once we obtain a copy of the Bill. Meanwhile please let us know what you think by participating in the following poll.

Current known GST rates worldwide

  1. Australia                                        10%
  2. Canada                                             5%
  3. New Zealand                               12.5%
  4. Singapore                                         7%
  5. United Kingdom                            15%

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.

Even Law Students can have a Life

Congratulations & Welcome to Law School!

Congratulations, you’ve successfully completed your foundation, diploma or STPM! And you have received the offer letter from the Law School you applied to!

If you survived the Orientation Week and met your seniors in many ways than one, you will start to hear the horror stories of Law School! And I’m not talking about the ghost at Level 13. The failure rate, lecturers who enjoy torturing with the innocent brains of young and helpless undergraduates like yourself. Maybe you’ve even earned that death stare yourself. Or at least your classmate. Ok.. Ok.. I’m exagerating a bit. But it’s always normal for seniors to hand down ‘how to tackle the lecturer’ tips and tricks.

After the 3rd week, work begins to flood your table. The lecturer wants you to read the cases and present them during the tutorials. Or even worse: the lecturer and tutor have no idea what each other is doing! And you know so well the price of not reading all those long, daunting, bombastic cases – public humiliation in front of your classmates. Yeah, the lecturer will not appear in leather and cracking a whip, but her comments and snide remarks is enough to burn through anything.

Where did all the lovey-dovey Law School image go?

When you’re overwhelmed with work, now you start to feel the weight of Law School. Gone were the image you had, which looked like a lost scene from Ella Enchanted.

Remember it’s Still University…

Don’t rob yourself of your recreational activities. If you’re into football or rugby, make time to play on the field at least every weekend. When reading the latest romance novel by Somefamous Novelist while sipping a nice warm cup of Milo is your thing, do it. Heck, if you enjoy PC games, why not!

As they say, if you work hard, make sure you play hard!

Watch your health. Yes, instant noodles can fill your tummy up – especially when your wallet and purse are dead from bleeding and there’s a draught in your bank account. Learn to cook vegetable. Buy up a stock for 3 days and cook. Nothing too fancy – as long as you can take it. You need carbohidrates, though you can try to avoid starch.

Learn to budget. Get rid of destructive expenses – yes, this includes that significant other who you cannot live without that’s demanding all your posessions be their’s. If you really want a partner, get someone who understands that you are a student. Don’t bother impressing them with gifts from the 1st day, coz the moment you do, you’re expected to – otherwise they think you don’t love them anymore.

If you can afford to set aside RM90 per month, sign up to go to gym. But there are many workout facilities you can access for free. A strong body paves way to a strong mind. Want to save cost, join a sports club on campus.

Learn to manage your emotions and mood. There are many sources you can refer to. A simple gesture such as praying can go a long way. If you know neurolinguistic programming (NLP), you can use it. No harm buying Adam Khoo’s I am Gifted, So Are You and Master Your Mind, Design Your Destiny. Tony Buzan’s books are also great. You can always go up to a counsellor or a priest. Neither two can speak about what you confide in them by Law and by faith.

Whatever you indulge in, make sure it’s balanced out. Otherwise you’d end up in trouble some aspects in your life.

Calling for Contributors… Again!

This has been said before, but again we cannot stress enough how “understaffed” this law blog is, so please, those of you who visit, if you guys are law students, think about contributing as well.

The qualifications required to be had are not much. They are that you should be;

1. A law student or a young lawyer (fresh grads or practising for a few years);

2. Be willing to write quality articles and share your experiance;

3. Believe that you can make a difference.

You will be required to make regular contributions on everything there is to do involving law (after all this is all and sundry on Malaysia legally), but posts must be neutral. Neutral means not showing sympathies with any particular groups nor showing any ideological inclinations, and sticking with the facts.

If any of you are interested, please leave a reply in comments and we will get back to you. – Admin.