UCP6413 CRIMINAL PROCEDURE I

TUTORIAL 1 (WEEK 2)

TOPIC 1 (INTRODUCTION)
Question 1

s. 4 Saving of powers of the High Court

‘Nothing in this Code shall be construed as derogating from the powers or jurisdiction of the
High Court.’
Analyse the effect of the above stated section to the criminal justice process in Malaysia.
Answer:

derogate – reduce

Section 4 - saving clause – non derogating - does not reduce the power

Eg. Contempt of court – no provision in CPC mentioned about this – eventhough does not
mentioned, it does not mean the court has no power - it is inherent power of the court -

Conflict btw CJA & CPC – CJA prevails (S.4 of CJA)

Conflict btw court and CPC – CPC prevails (court is to decide, not to amend the law)

In S.4 of CPC it expressly states that nothing in the Code shall be construed as derogating
from the powers or jurisdiction of the High Court. It is also known as non-derogation clause
and aims to assist the courts to interpret the legislation. In other words, this section declares
no limitation to the power and jurisdiction of the High Courts and nothing in its provisions
may derogate/detract the powers and jurisdiction inherent in High Court as well as conferred
by any other law on the High Court.

The main purpose of the section is to maintain and protect the high court in exercising its
jurisdiction. From this, it can be said that the high court has the inherent jurisdiction to
exercise its power even though such power is not stated in CPC. Section 4 of CPC also
empowers the high court to exercise its jurisdiction on the matters which is not provided by
the CPC or when the Act is silent about it. For an example, the High Court may exercise its
power to deal with matters related to contempt of court even though it is silent in the CPC.

PP v Saat Hassan
 - S.4 of CPC expressly preserved the inherent jurisdiction of the HC to make any order
necessary to give effect to other provisions under the Code or, to prevent abuse of the
process of any Court or otherwise, to secure the needs of justice

Tan Boon Hock v PP

- The inherent power of an appellate court to order a retrial on a proper charge before
another magistrate court is discretionary S.4 of CPC gives effect that its provision
does not derogate from the power & jurisdiction inherent in the court.

PP v Dato Mat Suafan

- In the absence of any express provision in the CPC to the contrary, a Judge of a High
Court may by virtue of S.4 of the CPC exercise his discretionary power under S.35 of
the Courts of Judicature Act as
- the words “In addition to the powers conferred on the HC by this or any written law”
means it is necessary for the court to refer to other additional supervisory/ revisionary
powers over those powers which are already contained in the CJA itself as well as in
any other written law.

Hari Ram Seghai v PP

- The powers of the court in England to intervene & make rules not provided in the
CPC are inherent and are exercisable to correct any injustice.

Question 2

Analyse and explain the application of s. 5 of the Criminal Procedure Code in the criminal
justice process in Malaysia by making reference to relevant case laws.
Answer:

S.5 allows reference to law relating to criminal procedure for the time being in force in
England

2 conditions:

- there must be a lacuna

- English law must not conflict/is inconsistent with CPC

Criminal Procedure Code (Act 593) (Revised 1999) is the main statute governing criminal
procedure in Malaysia. As per the case of Lim Hung Wang & Ors v Public Prosecutor
[2011] 9 MLJ 752, criminal procedure law is codified in the Criminal Procedure Code
(Revised 1999) (Act 593) which controls the entire process of criminal procedure from the
beginning of the commission of the offence tothe conclusion of judgment for that particular
case.

The term ‘Code’ is intended to be exhaustive, which signifies that it is complete and
comprehensive. In the case of Karpal Singh & Anor v Public Prosecutor [1991]1 CLJ
Rep 183, it was stated that the Code, as the name suggests was intended to be an exhaustive
pronouncement of the criminal procedure. The pronouncement and effect of the Code leaves
no lacuna under normal circumstances. The case of Shaafie @ Mohammad Bin Saibi v
Pendakwa Raya [2009] MLJU31 stated that in the trial of a criminal case, it is not permissible
to resort procedure not sanctioned by the law and the provisions of the Criminal Procedure
Code are exhaustive of the matters to which they relate.

However, we have to take note of Section 5 of the Criminal Procedure Code which states that
‘As regards matters of criminal procedure for which no special provision has been made by
this Code or by any other law for the time being in force the law relating to criminal
procedure for the time being in force in England shall be applied so far as when firstly there is
lacuna in matters of criminal procedure, in which the provisions of the laws of England shall
apply, and secondly provided that it must not be in conflict or inconsistent with Criminal
Procedure Code’. In Husdi v PP: S.5 provides that where there is a lacuna in our law relating
to criminal procedure, the court should apply English law, in so far as the same shall not
conflict or be inconsistent with the Code and can be made auxiliary thereto.

In the case of Sanassi [1970] 2 MLJ 198 The accused in this country was given a right to
make an unsworn statement from the dock because it is derived from the Criminal Evidence
Act 1898 of England as read with s.5 of the SS CPC. Another instance that clearly shows the
application of Section 5 of CPC is in Mohamed bin Jamal v PP [1964] MLJ 254 whereby The
appellate courts of which this court is the successor have always adopted the same attitude as
has been adopted by the English Court of Criminal Appeal to applications to call additional
evidence. English cases were referred whereby the court referred to the case of R v Parks on
the principles of adducing fresh evidence.

Hari Ram Seghal v PP [1981] 1 MLJ 165 English Criminal Procedure Law may be imported
so long as it is not inconsistent or in conflict with the Malaysian CPC. In Ong Lai Kim v PP
[1991] 3 MLJ There was no specific provision in the CPC and EA 1950 regarding the
procedure for identification procedures. In the absence of such provision, the English
Procedure was applicable. In the case of Chic Fashions (West Wales) Ltd v Jones [1968] 2
WLR 201, the police had obtained search warrant to search for stolen goods. Lord Denning
MR heldthat the police were justified in seizing and retaining the plaintiff’s goods even
though such items were not specified in the search warrant, so long as the police reasonably
believed them to be stolen. The issue in this case was the lawfulness of the seizure ofthe
goods and not the search which was lawful as there was a search warrant.

In Ghani & Ors v Jones [1969] 3 All ER 1158, there was a murder investigation where
the police held a search on the plaintiff’s house without a warrant. The police then seized the
passports of the first plaintiff, and of his wife (the second plaintiff) and of his daughter (the
third plaintiff). On appeal, Lord Denning upheld the decision and ordered the return of the
passports and other documents seized as the police had not shown reasonable grounds for
believing that the documents were material evidence to prove the commission of a murder,
not for believing that the plaintiffs were in any way implicated in or accessory to the
commission of the crime.

Should a situation such as in Ghani’s case (where persons suspected to have committed an
offence, the police cannot seize the passports) were to occur in Malaysia, the provision in the
CPC do not adequately cover it. Section 435 of the CPC cannot be used to seize the passports
as the passports are not properties suspected to have been stolen or found under circumstances
which create suspicion that an offence has been committed. However, Section 5 of the CPC
can be invoked so that Ghani’s case can be referred to and the principles articulated by Lord
Denning can be used.

The cases of Chic Fashions and Ghani have been cited with the approval in the Malaysian
case of Re Kah Wai Video (Ipoh) Sdn Bhd [1987] 2 MLJ 459. In this case, the police had
obtained a search warrant to search for infringing copies of films ofcertain titles specified in
the warrant. They seized both the specified and unspecified items. The magistrate held that
the seizure of the unspecified items were unlawful and ordered their return. High Court
revised the decision and set aside the magistrate’s order because by virtue of an implied
extension of the search warrant, the police had power to seize those articles, and at common
law following the decisions of Chic Fashions and Ghani, the police had power to seize the
unspecified items.

But there are criticisms on Re Kah Wai Video’s case where it was submitted that Nowhere in
the Criminal Procedure Code or elsewhere is there any provision enabling the issuing
Magistrate to make the order for return of the unscheduled articles and the Court found
support in English cases. However Lordship should have first referred to the provision of the
CPC and the Copyright Act1969 before referring to the common law. If Section 435 of the
CPC is deemed to be irrelevant, only then Section 5 of the CPC should be invoked .

In Tan Boon Hock v PP [1979] 1 MLJ 236 FC he High Court has jurisdiction to try all
offences including offences under the Penal Code committed within its local jurisdiction. See
section 22 of the Courts of Judicature Act, 1964. It not only has appellate criminal jurisdiction
but also revisionary power over all subordinate courts. See sections 26 and 30 of the said Act.
Section 4 of the Criminal Procedure Code says nothing in the Code shall be construed as
derogating from the powers or jurisdiction of the High Court. In matters of criminal
procedure, section 5 of the Code lays down that English law shall apply where no provision is
made by the Code or by any other law. Without calling in aid English law the High Court
certainly has power to do all those acts which are the subject of the reference.

Dato Seri Anwar bin Ibrahim v PP [2010] 2 MLJ 312-S.51A strengthens the guarantee of a
fair trial in providing the adequate facilities as purported in the general remarks document of
the Human Rights Committee that was read to us. Section 51A of the CPC has, in our
opinion, made the battlefield move level, to preserve the 'equality of arms principle', ensure
the fairness of a trial and ultimately uphold the very integrity of the courts in its
administration of criminal justice. This should also be considered in the light of our criminal
justice system where the burden of proof lies throughout on the prosecution, which, together
with the common law principle of presumption of innocence, safeguard that fairness Mohd
Rafizi Ramli v PP [2014] 4 CLJ 1 However, in such exercise of its inherent power the court
must be slow in doing so and ensure that such exercise do not conflict with any statutory
provisions.

As such, it is clear from the wordings of Section 5 of the CPC that English laws shall be
applied so far as it shall be any lacuna in matters of criminal procedure, in which the
provisions of the laws of England shall apply, and secondly provided that the English law
must not be in conflict or inconsistent with Criminal Procedure Code’

Question 3

Analyse the difference between ‘seizable offences’ and ‘non-seizable offences’ based on the
provisions of the Criminal Procedure Code.

Answer:
Seizable Offence is an offence where police officers allowed to arrest a person without
warrant according to the third column of the First Schedule to the Criminal Procedure Code
(CPC). It shows that the offences under the Penal Code which are punishable with
imprisonment of three years and above are seizable offence. This means that the police have
the power to arrest any person without warrant for any violation of the Penal Code under
seizable offence.

On the other hand, non-seizable offence is an offence where police officers are only allowed
to arrest a person with a warrant according to the third column of the First Schedule to the
CPC. This means that a police officer is not allowed to arrest a person without a warrant if the
punishment of the offence is less than three years.

a) Seizable offence

 Police officer (PO) can arrest without warrant. It is more serious in nature where
offences punishable with imprisonment for 3 years and above would come under this
ambit. PO can investigate the case without obtaining an order to investigate from the
Public Prosecutor (PP). Any PO not below the rank of sergeant or any officer in
charge of the police station may investigate without order of the PP as stated under
S.109(1) of CPC.
 For PC Offences: refer CPC, First Schedule, 3rd Column (S.2 CPC)
 For non-PC Offences:
o refer specific statute (eg. S.31(1) DDA, S.49 MACC); or
o CPC, First Schedule, Last Column (punishable with imprisonment MORE than
3 years/death) (only if specific statute is silent)
 All offences under DDA and MACC are seizable.
 S. 57 PC, imprisonment for life refers to 30 years.
b) Non-seizable offence

 PO has no authority to arrest without warrant. It is less serious in nature where

offences punishable with imprisonment for less than 3 years would fall under this
ambit. PO cannot investigate the case without obtaining an order to investigate from
the PP. Any PO not below the rank of sergeant or any officer in charge of the police
station may investigate with the order of the PP as stated under S.108(3) of CPC.
 For PC Offences: refer CPC, First Schedule, 3rd Column
 For non-PC Offences: refer specific statute / CPC, First Schedule, Last Column
(punishable with imprisonment LESS than 3 years/with fine)

Question 4

Hinata was charged with trafficking in 157.08 grammes of heroin, an offence under s.39B (1)
(a) and punishable under s. 39B (2) of the Dangerous Drugs Act 1952 which carries a
punishment of death.

s. 41B (1) of the Dangerous Drugs Act 1952 provides:

(1) Bail shall not be granted to an accused person charged with an offence under this Act –

(a) where the offence is punishable with death; or

(b) where the offence is punishable with imprisonment for more than five years; or

(c) where the offence is punishable with imprisonment for five years or less and the
Public Prosecutor certifies in writing that it is not in the public interest to grant bail to
the accused person.

From the facts, the learned President of the Sessions Court had granted bail pending the
hearing of the case on an application by her Defence counsel of the proviso to s. 388 (1) of
the Criminal Procedure Code.
As the Deputy Public Prosecutor conducting this case, you intend to file an application to
review the granting of bail. What would be your argument to support your application?
Answer:
Issue: whether DDA or CPC applies
Law:
Section 3 of CPC – general rule must follow CPC, but there is exception. Specific statute
(DDA) will prevail general statute (CPC)
Section 388(1) of CPC – may grant
Section 41B(1) - bail shall not be granted at all
Application: applies S41B, cannot grant bail.

Whether S 388(i) of Criminal Procedure Code overrides the provision of section 41B of the
Dangerous Drugs Act 1952?
S.3 of CPC provides that all offences under any other law other than PC shall be inquired into
and tried according to the provisions in CPC unless there is any written law for the time being
in force regulating the manner or place of inquiring into or trying such offences.
In the case of Lim Hung Wang & Ors v Public Prosecutor, it was stated that criminal
procedure law is codified in the Criminal Procedure Code (Revised 1999) (Act 593) which
controls the entire process of criminal procedure from the beginning of the commission of the
offence to the conclusion of judgment for that particular case.
However, based on the maxim of generalia specialibus non derogant and the exception
provided under S.3 of CPC, if a particular statute prescribes a special procedure of trial or
investigation governing offences committed under that statute, then that statute shall prevail
over the CPC. But, if the particular statute is silent on the procedure to be followed in an
investigation, the procedure laid down in the CPC shall then be applicable.
Furthermore, S.41B(2) of DDA states that Subsection (1) of S.41 shall have effect
notwithstanding any other written law or any rule of law to the contrary. Based on this
subsection, S.388(1) of CPC or the proviso to the section will not be applicable to the present
case.
In the case of PP v Chew Siew Lian: The issue in this case is whether or not S.388Criminal
Procedure Code (CPC) overrides the provisions of S.41B of the Dangerous Drugs Act 1952
(Act 234). The Federal Court held that S.388 of the CPC does not override the provisions of
S. 41B of the DDA.
In Loy Chin Hei v PP, The accused was refused bail by the Sessions Court judge and he
applied to the High Court for bail pending the disposal of the charge against him. The issue
was whether Section 41 of the Dangerous Drug would make the offence non-bailable. The
High Court of Malacca held that S. 41B of the makes an offence under it an absolutely
unbailable offence. The Act was a particular subsequent legislation and it must be construed
as having curtailed the discretion to grant bail in drug offences punishable with death or life
imprisonment previously vested in the Courts by an earlier general legislation which is the
Criminal Procedure Code
Loy Chin Hei [1982] 1 MLJ 31– DDA 1952: “I accept the view that where any statutory
offence other than the Penal Code is silent or makes no provision as to bail, then the First
Schedule to the Criminal Procedure Code will apply and the offences can be classified either
as bailable or non-bailable according to the provisions of the Schedule. However, the
provisions only apply to cases where the particular statute creating the offence is silent on the
question of bail. In my view, if provision is made in a later legislation, then the later provision
will prevail over the provisions of the Criminal Procedure Code.”
Application:
Observing the case of Hanizam Hassan V Pengerusi Lembaga Pencegahan Jenayah, since
there are specific provisions relating to remedies involving laid down in S.4(1) (a) and S.4(2)
(a) of the Prevention of Crime Act 1959. Hence, S.117 of the Criminal Procedure Code is a
general provision and does not apply since there is a special provision. Therefore, the doctrine
of generalia specialibus nonderogant applies.
Applying the case of PP v Chew Siew Lian and Loy Chin Hei v PP back to the situation,
S.388 of the CPC clearly does not override the provisions of S. 41B of the DDA. The DDA
act is a particular subsequent legislation and it must be construed as having curtailed the
discretion to grant bail in drug offences punishable with death or life imprisonment
previously vested in the Courts by an earlier general legislation which is the Criminal
Procedure Code. Thus the accused, Hinata cannot be granted bail as the offence is a non
bailable offence under the S. 41B of the DDA

----------------------------------------------------------------------------------------------------------------
Bail should not allow.
S, 3 of CPC written that specific statute will overrides the general statutes of CPC. CPC
are subject to any written law which provides to the contrary. This is in line with the
principle of “generalia specialibus non derogant.”
This maxim means that when there is a conflict between a general and a special provision,
the special provision shall prevail over the general. Henceforth CPC must also read with
other statute that governing specific offences.
Lorraine Phylis Cohen & Anor v PP(1989) the court referred to Section 4 of the Courts of
Judicature Act 1964 which states that if there is inconsistency or conflict between this Act
and any other written law other than the Federal Constitution in force at the
commencement of this Act, the provisions of this Act shall prevail.
Thus, the court held that the Criminal Procedure Code falls within “any other written law”
and could not override any provision of the Courts of Judicature Act 1964.
In another words, provisions in CPC could be overwrites with the specific written law in
force in Malaysia.

Issue: Whether the learned President of the SC had erred in law when he granted Hinata bail
pending the hearing of the case?
Law:
S 3 of CPC states that all offences under the Penal Code shall be inquired into and tried
according to the provisions hereinafter contained, and all offences under any other law shall
be inquired into and tried according to the same provisions: subject however to any written
law for the time being in force regulating the manner or place of inquiring into or trying such
offences.
In other words, it indicates that all offences under any other law shall be tried according to the
CPC unless the other law has specific provisions regulating the manner of trying such
offences.
Maxim: generalia specialibus non derogant (general things do not derogate from special
things) means that courts prefer specific provisions over provisions of general application
where the provisions are in conflict / specific provision prevail over general provision. This is
in line with S.3 of CPC.
Application:
By referring to the current situation, Hinata was charged under a specific statute that is DDA
and this statute has laid down a specific procedure relating to bail under S 41B(1)(b) of DDA.
However, CPC is a general statute and S 388(i) of CPC is a general procedure under the
Code, therefore, S 41B(1)(b) of DDA shall prevail over CPC which is general statute.
Conclusion:
The learned president of SC had erred in law when he granted Hinata bail pending the hearing
of the case.

a) Rossarin Nuekaew [2017] MLJU 1156, FC

https://www.studocu.com/my/document/multimedia-university/criminal-procedure-i/criminal-
procedure-i-cases/16953171

Facts:

 The appellant, Rossarin Nuekaew, was charged with trafficking 16,841 grams of
cannabis under paragraph 39B(1)(a) of the Dangerous Drugs Act 1952.
 She was arrested on December 9, 2011, at the Shabab Perdana Bus Terminal in Alor
Setar after police received information about drug trafficking by a foreign national.
 During the arrest, the police identified themselves, and the appellant was detained
with bags that were suspected to contain drugs.
 The High Court convicted her and sentenced her to death, a decision that was upheld
by the Court of Appeal.

Issues:

 The main issue was whether the appellant received a fair trial and whether any
procedural irregularities, such as the admission of witness statements, constituted a
failure of justice.
  The court needed to determine if the appellant was adequately informed of the charges
and had a fair opportunity to defend herself.

Judgment:

 The Federal Court dismissed the appeal, affirming the conviction and sentence
imposed by the High Court and upheld by the Court of Appeal.
 The court found that even if there were procedural irregularities regarding the
admission of witness statements, these did not result in a failure of justice.
 The evidence presented by the prosecution was deemed sufficient to prove the case
beyond a reasonable doubt.

Principle:

 The case reinforces the principle that procedural irregularities do not automatically
equate to a failure of justice, provided that the accused was given a fair trial and had
the opportunity to defend themselves adequately.
 It also highlights the importance of the signed witness statements and the agreement
of the appellant during the proceedings, which contributed to the court's decision to
uphold the conviction.

Facts: The appellant, was charged and convicted before the High Court at Alor Setar in the
State of Kedah with an offence under paragraph 39B(1)(a) of the Dangerous Drugs Act 1952
for trafficking of 16841 grams of cannabis (from the 18 slabs of dried leaves). The appellant’s
appeal to the Court of Appeal was heard and dismissed. The appellant now appeals to this
Court against the decision of the Court of Appeal in dismissing her appeal.
Issues raised on the application of section 402B of the Criminal Procedure Code are as
follows:-
i) Whether the written statement of the chemist (SP1) to be admitted as evidence in Court
must be read aloud at the trial;
ii) Whether the Court can direct otherwise for the written statement not to be read aloud at
the trial;
iii) Whether the conditions to be complied with under subsection 402B(6) of the CPC is
directory or mandatory; and
iv) Whether the non-compliance with the conditions under subsection 402B(6) of the CPC
is curable under section 422 CPC.
Held: The appeal be dismissed, and the conviction and sentence passed by the High Court and
affirmed by the Court of Appeal are affirmed
The witness statement was properly admitted under section 402B of the CPC for:-
a) SP1 had signed the statement;
 b) It contained a declaration by SP1 that the statement is true to the best of her knowledge
and belief; and
c) The appellant had no objection and agreed during the proceeding for the statement to be
tendered in Court as reflected in the Court Recording and Transcription (“CRT”).
We are of the view that from a proper reading of subsection 402B(6) of the CPC, that
subsection does not require the witness statement to be read aloud in Court in every situation.
The Court can direct that only a portion of the witness statement to be read or not at all. The
exception is expressed in the use of the words “unless the Court otherwise directs,”
The Criminal Procedure Code (Amendment) Act 2010 [Act A1378] provides for the
insertion of section 402B into Chapter XXXIX of the CPC. Act A1378 received royal
assent on 2.6.2010 and was published in the Gazette on 10.6.2010. The explanatory
statement of the Criminal Procedure Code (Amendment) Bill 2010 [“the Bill”] states as
follows:
“Clause 8 seeks to introduce two new sections, namely sections 402B and
402C, into Act 593. The new section 402B seeks to facilitate the substitution of
oral evidence with that of written statements. This process will enable the
Public Prosecutor and the defence to tender statements in the form of evidence
during examination-in-chief. This will save the Court’s time in recording
evidence as the statements will have effect as though the evidence were oral
evidence given in open court and any exhibits tendered by virtue of this section
is tendered as though tendered in the normal course of trial.”
The requirement to read aloud the witness statement under subsection 402B(6) of the CPC is
only directory and not mandatory.
Hee Nyuk Fook v Public Prosecutor [1988] 2 MLJ 360: “The question that arises is
whether section 158 (ii) is mandatory or directory. In our view, the word “shall”
appearing therein, though generally taken as mandatory, does not mean to be so in every
case. No hard and fast rule can be laid down because it depends on the facts and
circumstances of a particular case, the purpose and object for which such provision is
made, the intention of the legislature in making the provision and the serious
inconvenience or injustice which may result in treating the provision one way or the
other. We are of the view that the safest way is to look into the subject- matter of the
case, consider the importance of the provision that has been disregarded, the relation of
the provision to the object of the Code and decide in that order whether the matter is
imperative or only directory
Relying with the explanatory statement of the Bill, Hansard and S 17A of Interpretation
Act 1948 and 1967, the requirement to read aloud the witness statement of the chemist
(SP1) is not mandatory and it can be dispensed with if the Court finds it appropriate to
do so and it is satisfied that no failure of justice will be occasioned by such dispensation.
We are of the view even assuming that the witness statement was improperly admitted due to
the omission of reading the statement aloud during the trial, it nevertheless had not
occasioned a failure of justice. Our view is fortified by the argument that the witness
statement of SP1 contained a declaration and was signed by SP1. The statement was tendered
with the agreement of the appellant during the proceedings. The defence had the opportunity
to challenge SP1’s evidence and SP1 was under oath at all times.
The procedural non-compliance of subsection 402B(6) of the CPC is merely an irregularity
and not an illegality and is curable under section 422 of the CPC.
PP v Ishak Hj Shaari & Other Appeals [2003] 3 CLJ 843 explained that “failure of justice” in
section 422 of CPC occurred when the accused was denied a fair trial:-
“The issue whether or not the misdirection has occasioned a failure of justice can
beresolved by seeking answer to certain corollary questions, namely, did the accused
have a fair trial, did he know what he was being tried for and whether the allegations
and facts were explained to him fairly and clearly and whether he was given a full and
fair chance to defend himself? If the answers are in the affirmative, the only conclusion
is that there has been no prejudice and failure of justice. If the answers are in the
negative, the trial must necessarily be treated as vitiated. If there exists a reasonable
doubt regarding the answers, the benefit of doubt must be given to the accused.”

---------------------------------------------------------------------------------------------------------------
Provides for non-compliance of S.402B (written statement). S.402B of the CPC provides that
the statement admitted in evidence shall be read aloud at the trial, unless the court directs
otherwise. Courts could depend on this provision at its discretion, when it considers it
appropriate and with the concurrence of all parties, with the requirement that the witness
statement must be read aloud. This is to avoid unnecessarily lengthy readings of such
statements in court so as to not defeat the purpose for the insertion of S.402B (to provide a
speedy disposal of criminal cases). Hence, the requirement under s.402B is only directory, not
mandatory
----------------------------------------------------------------------------------------------------------------
S.402B: statement admitted in evidence shall be read aloud at the trial, unless the Court
otherwise directs.
-Court could use its discretion, when it considered it appropriate and with the concurrence of
all parties, to dispense with the requirement that the witness statement must be read aloud.
-This is to avoid an unnecessary lengthy reading of such statement in court so as not to defeat
the purpose for the insertion of s.402B into the CPC, which was to provide a speedy disposal
of criminal cases.
-The requirement under s.402B(6) was only directory and not mandatory. It could be
dispensed with if the court found it appropriate to do so and was satisfied that no failure of
justice would be occasioned by such dispensation.
-It was merely an irregularity and not an illegality and was curable under s.422 of the CPC.

b) Lorraine Phylis Cohen [1989] 2 MLJ 288, SC

Facts:

 The applicants, Lorraine Phylis Cohen and her son, were convicted of trafficking in
dangerous drugs under the Dangerous Drugs Act 1952.
 The trial concluded on 1 September 1987, with the first applicant sentenced to death
and the second applicant to life imprisonment plus six strokes of the rotan.
 A 15-page written judgment was delivered by the trial judge on the same date, which
was signed and dated.
 Approximately 15 months later, on 10 December 1988, the judge issued a second
judgment, which the applicants contested, seeking to have the first judgment included
in the record of appeal instead.

Issues:

 Whether a judge can supplement a previously delivered written judgment with a

second judgment or grounds of decision after a significant time lapse.
 The applicability of Section 278 of the Criminal Procedure Code and its relationship
with the Courts of Judicature Act 1964 regarding the alteration or review of
judgments.

Judgement:

 The Supreme Court granted the applicants' application, ruling that the judgment dated
1 September 1987 should be the only judgment included in the record of appeal.
 The court held that once a written judgment is signed and delivered, it cannot be
altered or supplemented by a subsequent judgment.

Principles:

 A judge cannot deliver a second judgment to supplement a first judgment that has
already been signed and delivered.
 The provisions of the Courts of Judicature Act 1964 take precedence over the
Criminal Procedure Code regarding the alteration of judgments.
 The principle established in previous cases (e.g., Nathan v PP and Ankur Nath
Ganguli v PP) reinforces that only the signed judgment forms part of the record, and
no additional judgments can be added post-delivery.
Issue: Whether learned judge can supplement first judgment by delivering second judgment
or grounds of decision
Facts: applicant has been convicted on charges for drug trafficking. At the trial, the first
applicant was sentenced to death and the second applicant was sentenced to life
imprisonment. The judgment was dated and signed. After 15 months, the judge purported to
hand down another judgment. Hence, the applicant applied for an order the first judgments to
be included in the record of appeal instead of the second judgments.
Decision:
- It is incompetent for the learned judge to supplement first judgment by delivering a
second judgment or grounds of decision provided there was already a written
judgment signed and delivered by the learned judge under S. 52(1) CJA
- Section 278 of CPC does not assist the court where it is stated that the High Court
may be able to alter or review its judgment before the court rises, but not when the
second judgment was written for after 15 months after the first judgment was
delivered
- Section 278 of CPC falls within “any other written laws” in section 4 of CJA.

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The applicants, mother and son was charged for trafficking dangerous drugs in Penang,
contrary to s 39B(1)(a) and punishable under s 39(B)(2) of the Dangerous Drugs Act
1952.The first applicant was sentenced to death and the second applicant was sentenced to
life imprisonment plus six strokes of the rotan.
The learned judge handed down a sealed judgment dated 1 September 1987, but some 15
months later, he purported to hand down another grounds of judgment dated 10 December
1988. The contention of the applicants is that the learned judge cannot deliver a second
judgment having written, dated and signed the first judgment dated 1 September 1987
Held: Since there was already a written judgment, signed and delivered on 1 September 1987
no second written judgment or grounds of decision could be delivered subsequently to
supplement the first judgment.
The relevant part of s 52(1) of the Courts of Judicature Act 1964 provides:
When a notice of appeal has been filed the judge by whom the decision was given shall,
if he has not already written his judgment, record in writing the grounds of his decision,
and the written judgment or grounds of decision shall form part of the record of the
proceedings.
Mathew CJ in Ankur Nath Ganguli v PP [1956] MLJ 206 stated:-
 : This means clearly that if reasons for convicting an accused person have not been
given and recorded, a trial judge may record in writing the grounds of his decision and
those grounds shall form part of the record. In this case the learned trial judge gave
reasons for convicting the appellant, and his judgment was taken down by his secretary
and was reduced to a written form. This not-too-happily phrased sub-section means, in
our view, that if a trial judge gives no reasons which are recorded for convicting an
accused person, then and then only he can on notice of appeal being given write his
grounds of decision which shall form part of the record. The sub- section permits only
of a written judgment or grounds of decision being included in the record, and this must
be either the one or the other, not both. We therefore, hold that what has been termed an
addition to the learned trial judge's oral judgment cannot form part of the record, and we
can have no regard to it.
S 278 of Criminal Procedure Code does not apply in this case. The High Court may be able to
alter or review its judgment before the court rises for the day but not when the second
judgment was written some 15 months after the first judgment was delivered. s 278 does not
confers jurisdiction on a judge to deliver a second judgment to supplement a first judgment
Moreover, Section 4 of the Courts of Judicature Act 1964 states unequivocably that:-
In the event of inconsistency or conflict between this Act and any other written law
other than the Constitution in force at the commencement of this Act, the provisions of
this Act shall prevail.
s 278 of the Criminal Procedure Code falls within 'any other written law' and could not
override any provision of the Courts of Judicature Act 1964.

c) Ayar [2010] MLJU 520, HC

General rule – refer specific statute, but when the law in specific statute is incomplete, refer
back to CPC
S.47D of Fisheries Act (hereinafter ‘FA’) is looked upon but it is silent on the procedures in
applying for a remand order before a magistrate as stipulated under S.117 of CPC. Thus, by
virtue of S.3 of CPC, the procedures mentioned under the CPC shall be applied in the event
that the FA is silent on that.
 Apply 47D or 117?
 47D(2) only states that the Magistrate is authorised to detain a suspect, but is silent on
the steps to detain. Under 117, there must be a copy of the entries in the diary.
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In Public Prosecutor v Ayar and 18 Others [2010], the High Court reviewed a decision by the
Magistrates’ Court that denied further detention of 19 Indonesian fishermen arrested for
illegal fishing in Malaysian waters. The Maritime Enforcement Agency applied for an
extension of detention under section 47D of the Fisheries Act 1985 to complete the
investigation. The Magistrate rejected the application, ordering the release of the fishermen
without providing reasons, which the prosecution challenged as an error.

The High Court examined whether the procedural requirements of section 117 of the Criminal
Procedure Code (CPC), which mandates detailed justifications for detention, applied to
section 47D of the Fisheries Act. It found that the enforcement officer failed to provide
essential investigation details in the application and had merely repeated the initial remand
request without explaining investigative progress.

The court upheld the Magistrate’s decision, ruling that the procedural omissions justified the
denial of further detention. However, it clarified that the term "dilepaskan dan dibebaskan"
(acquitted and discharged) was incorrectly used by the Magistrate, as it implied a final
acquittal rather than a temporary release from detention.

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Facts

 On March 12, 2010, 19 Indonesian fishermen were arrested by Malaysian authorities

for allegedly fishing illegally in Malaysian waters using four unregistered vessels.
 They were initially detained under Section 15(1)(a) of the Fisheries Act 1985, with the
officers seeking further detention for investigation.
 After initial detention, the prosecution requested an extension from the Magistrate's
Court in Manjung, but the Magistrate denied further remand and ordered their release.

Issues

1. Was the Magistrate correct in law to deny further detention of the respondents?
2. Was the Magistrate obligated to provide reasons for rejecting the request for
extended detention?
3. Was the order for the respondents to be “dilepaskan dan dibebaskan” (acquitted
and discharged) correct in this context?

Judgment

 The High Court ruled that the Magistrate was justified in denying further detention
due to procedural lapses by the Investigating Officer (I.O.), including failure to
provide required investigation records and information about actions taken during the
initial detention.
  It noted that while the Magistrate was not strictly required to provide reasons for
rejecting the detention, doing so would have been helpful.
 The High Court found the phrase “dilepaskan dan dibebaskan” (acquitted and
discharged) inappropriate, as this was a remand hearing and not a trial; the correct
term would have been “released.”

Principle

 Application of Procedure: This case emphasized the importance of strict adherence

to procedural requirements under Section 117 of the Criminal Procedure Code, even
when not explicitly required by Section 47D of the Fisheries Act.
 Judicial Review of Detention: The judiciary has the duty to ensure that detentions
follow due process, particularly where deprivation of liberty is involved.
 Terminology in Judicial Orders: The specific language used in judicial orders must
accurately reflect the legal context to avoid misinterpretation.