Power of PP , Transfer , Initiation of Proceedings

What can prosecution do to vertically or laterally transfer cases from one court to another?

• apply to LOWER COURT to transfer the case to a higher court - s177 - subject to consent by PP - s177A

• apply to HIGH COURT - s417 - for the case to be transferred by way of motion (s418) + no need affidavit (if application made by PP) - if DPP - affidavit stating grounds of transfer

• issue a certificate to transfer the case to a specified HC - s418A given that s418B - the A has yet to plead guilty and evidence are yet to be adduced

PP v Lim Shui Wang

transfer under s418A only allowed from sub crt to high crt

Datuk Hj Wasli v PP

• cert issued by PP to transfer case from Session court in Kota Kinabalu to KL High court rejected

• a preliminary objection on whether order for refusal to transfer was appealable

Held: s418A not empower PP to transfer from SS to Peninsular - read s418A with s22 CJA - only allow PP to transfer cases from sub court to HC which is either of local juris of HC in SS or Malaya

refusal to transfer

• means the court wants to hear the case himself

  [Datuk Hj Wasli v PP]

• s307 CPC - judgment, sentence, order must be final order resulting to conviction or acquittal

• refusal = ruling - procedural

• not final therefore not appealable

Is the PP entitled to withdraw the transfer certificate?

[Dato Seri Najib v PP] - the power of withdrawal is similar to the power of transfer - both are subset of the power to institute a case enshrined in Art 145(3) of the FC

• previous controversy - s418A was held unconstitutional - on the basis that the judicial power to transfer cases should only be exercised by the members of judiciary - this doctrine is declared void in [Maria Chin v Director General of Immigration]

s418A

[DSAI v PP] - charges initially brought in SC but later transferred to HC upon issuance of cert by PP

• it is the proceedings that is transferred - not the charge - does not preclude the charge from being amended

Is it legitimate for the HC judge to transfer the case back to the same HC without fresh reg upon application under s417?

[Dato Seri Najib v PP]

• Yes, if the HC judge has taken into consideration all requirements under s417(1)(a)-(e)

• s417(1)(e) - expedient for the ends of justice

• Had the charge gone through the registration route, it would have caused unnecessary delay to the proceedings as a new trial date would have to be fixed - against the public interest considering the seriousness of the case

• threshold to transfer under s417 by virtue of the language used - if it appears to the court - not if the court is satisfied that

• even if there is irregularity in the exercise of power - can be cured by s422 - unless occasioned a failure of justice

• requirement to go through the new reg route is mere formalities with administrative purposes , not binding procedure

When can a HC order for transfer under s417?

(a) fair and impartial trial cannot be held in sub court

(b) QoL of unusual difficulty arised

© need to view of the crime scene for a fair trial

(d) for the general convenience of parties and witnesses

(e) expedient for the ends of justice

Are the judges in subordinate courts equally trained and qualified to try such cases?

fair and impartial trial cannot be held in sub crt

• [Seow Francis v Comptroller of Income Tax] - not sufficient to rely on - witness including high-ranking officers - Art 8 FC - every accused person must be treated alike

QoL of unusual difficulty arises

[Oh Keng Seng v PP] - unusual - difficulty must be such that either the QoL is unique or out of ordinary - has not been dealt before by any court - novel

• constitutional point of great importance is expected to be raised - x good grounds under s417

Are the judges in subordinate courts equally trained and qualified to try such cases?

• If yes - unlikely to allow transfer

expedient to the ends of justice

very wide - may include grounds outside the paragraphs in the provision - may cover necessity of transfer to secure justice and a fair trial

• [Oh Keng Seng v PP] - crts reluctant to invoke

significance of PP’s consent to institute prosecution in HC under s177A

[PP v An Kee Cheng]

• Held: consent of PP needed in transmission under s41A DDA

• the objective of this requirement of consent is for the PP to act as a filtering mechanism , with all the information available or accessible to the PP , to determine whether there is sufficient evidence for the case to be tried in HC

• this role used to be played by the Mag through preliminary inquiries in deciding whether to grant a committal order.

• The abolishment of preliminary inquiries deprived the Mag of the ability to assess the sufficiency of evidence.

s41A DDA 1952

when an accused is tried under s39B for drug trafficking, it is triable exclusively by HC

• when an accused is produced before Mag for mention,

• charge shall be read and explained to him - shall not be called upon to plead

• consent of PP needed for the Mag to transmit the case to HC

• transmit to HC

• cause the A to be brought before HC as soon as practicable

• principle of generalibus specilia derogant, s41A apply instead of s177A

Transmission

Mag read and explain the charge to the A but cannot take plea from the A

What if the case is transmit without first obtaining PP’s consent?

[PP v Marwan Ismail] - will not nullify the proceedings given that consent is obtained before the A plead to the charge

proviso to s177A(1) - case should not be further prosecuted until PP’s consent obtained

Significance of the A being a public figure in an application to transfer

Art 8 FC - everyone should be treated alike

[PP v Su Liang Yu] - public figures deserve to be administered fair and equal justice just like any other commoner

[PP v Dato Seri Najib] [PP v Datin Seri Rosmah] - HC allow transfer as the parties involved are high profile figures

[PP v Abdul Azeez] - HC held being a public figure wasn’t a good reason to transfer - PP must show QoL to be exceptionally difficult and extraordinary

Refer back to requirements under s417

If PP kept postponing the transmission of case to HC?

case can be transmitted before consent obtained- if it is a case where it is unlikely for A to be released thus he will be held in custody until consent obtained - if adjournment persists - he will have to wait indefinitely

trial on alternative charges

[Fam Men Siong v PP] - contended no written consent from DPP under s177A for prosecution on alternative charge - thus a nullity - sentence bad in law

Held: prosecution at HC was conducted by DPP himself - DPP is the alter ego of PP - consent to prosecution on alternative charge could be implied - not nullity

Appointment of AG

• Art 125(3) FC - YDPA shall, on the advise of PM - appoint a person who is qualified to be a judge to be the AG

Art 145(3) & s376(1) CPC

• PP has wide discretionary powers to institute, conduct or discontinue prosecutions and proceedings

institute

• to commence - case differs as to when the proceedings are instituted

• [Re Kah Wai] - instituted when the accused is arrested

• [PP v Toha] - at the moment the court ask the A for a plea - affirmed in [Kyohei v PP]

• PP’s discretion to institute - [Johnson Tan v PP] - Art 145(3) prevails Art 8 equality before the law - PP has discretion to prefer which charge he deems fit

conduct

• [PP v Datuk Haji Harun] - ‘to lead, guide and manage’

• discretion whether to call a particular witness or produce an evidence

• [Tan Sri Eric Chia v PP] - PP has power to take evidence from overseas - does not interfere with SC’s judicial power

• see s377-380A

• Limitations - [Jayaraman v PP] - held that under s170 CPC - it is court’s power to order separate or joint trials and not PP’s - PP has no power to regulate criminal procedure, the juris of court or the discretionary powers of court

s377

• every conduct of criminal prosecution shall be conducted by PP, SDPP, DPP and APP

• unless expressly authorised by PP and fall under s377(b)

• [Repco Holdings v PP] - Chairman of SC -should not be allow to conduct prosecutions under Securities Commission Act - two provisions under SCA were ultra vires Art 145(3) FC - thus void

Does the authority to conduct conferred under s377 comes with a power to institute?

[LHDN v Kang Keng Tee]- the word ‘discretion’ under Art145(3) FC empowered PP to exercise the powers therein or delegate it to his subordinate officer - it is not pragmatic for the AG alone to exercise these powers - IRB can institute proceedings as long as consent obtained from PP

[Subramaniam v PP] - HC held that unlike the delegation of power to conduct which can be allowed with express authorization in writing under s377 - delegation of power to institute should not be allowed - HC ruled s120 of Local Government Act 1976 which gives local authority parallel power to institute proceedings to be null and void - A given DNAA

Note that in Subramaniam - the prosecuting officer did not have any authorization from PP to conduct prosecution - indicate PP unaware and did not consent

Conclude: if prosecuting officer managed to obtain authorization in writing by PP to conduct , likely that it comes with power to institute

Power of PP to delegate his power to conduct prosecution

• s376(3) - PP may directly appoint fit and proper persons as DPP - [DS Rosmah v PP] - appointment not necessarily need to be in writing

• s377(1)(b) - authorize persons under (b) to conduct criminal proceedings -

• s379 - appoint an advocate through letter of appointment (fiat) to conduct single/ ad hoc criminal proceedings

These sections must be viewed holistically - meant to ensure that the proceedings are under the purview of PP - envisaged in Art145(3) FC

discontinue

• s254 - PP may discontinue at any stage of trial before judgment if he thinks fit

• s254(2) - in sub crt - PP may discontinue but must obtain leave of court

• [PP v HLS Perera] - it is not for the court to usurp he functions of AG until PP makes up his mind as to the continuation of proceedings

• Upon discontinuation - all proceedings shall be stayed and the court shall order the A to be DAA or DNAA

• DAA - A cannot be charged again for the same offence following the principle of autrefois acquit

• DNAA - A may be charged again

• s254(3) - discharge should not amount to acquittal unless the court so directs

• [Koh Teck Chai] - if PP discontinues - it is appropriate to grant DAA since it is not right to leave a charge hanging over an individual for an indefinite period unless good grounds can be shown

• [Vigny v PP] - s254(3) - crt had to specifically direct that the discharge is a DNAA - otherwise - default position - DAA

Attempts to disqualify an advocate from leading prosecution as DPP

[Rosmah v PP] - not necessary for the appointment under s376 to be gazetted/ in writing

[Muhammad Shafee v PP] - sought declaration from court that appointment of advocate ultra vires the powers of PP
Held : not ultra vires , in accordance with s376(3) - the section does not limit powers of PP to appoint legal officer in the Judicial and Legal Service Community - can also appoint non-legal officers

s380A

• s377 and 380 shall prevail

Letter of representation

• forms an essential part of the pre-trial process

• defence counsel will make a letter of rep saying the charges cannot stand

• upon receiving the letter - PP are vested with powers and discretion to continue, discontinue and withdraw criminal charges at any stage of the proceedings

direct law enforcement agency investigating crime to refer the report to him immediately

s120(2) - PP may at any time direct officer making investigation to submit a report to him regardless of the 3 months in (1)

miscellaneous power of PP

• s171 - to withdraw remaining charges where A has several charges and pleads guilty to one or is convicted on one

• s108 - issue order to investigate non-seizable offences

• s418A - power to issue certificate to transfer case to HC subject to s418B

• s41B DDA - certifying denial of bail

• s396 CPC - make oral application to court to produce a person before the court for the purpose of recording his evidence on oath if his attendance cannot be procured

if there are many charges against the A at the end of trial on one charge

s171 - pros may withdraw remaining - conviction secured on one

s171A - crt may - at the end of the trial when sentencing - take into consideration any other outstanding offences which have been admitted by A - provided there is consent by both pros and A - crt should then record the consent - A shall not be charged for such outstanding offences later [Abang Zailan] - unless the conviction - set aside

• if consent not obtained - judgment or order (sentence) - invalid - [Mohd Johan]

Advantages

• encourages A to admit to offences as in absence of such admission - difficult to prove

• A don’t have to worry about being prosecuted for such offences in the future

• sentence imposed would generally be lower than if he was to be individually charged and convicted for each of the offences - [Hashim v PP]

consent & sanction

Consent

• consent of PP is accompanied with deliberation where the mind weighs, as in a balance, the good and evil on each side

• presence of DPP implies consent - alter ego of DPP - Fam Men Siang v PP - alternative charge

• However, if the statute specifically states that the consent of PP needs to be writing - doctrine of alter ego has no application - [Goh Keat Peng v PP]

• [Chua Chor Kian] - no consent - charge illegal and trial is a nullity

Sanction

• s129 listed offences that require sanction

• does not require deep consideration

• [Datuk Mahinder Singh] - no sanction - nullity - not curable

• [Joginder Singh v PP] - irregularity - curable under s422

Significance of Mag taking cognizance under s128

• indicates the start of private prosecution

• if the offence is one that is non-seizable and police failed to obtain OTI - s108(1) states - police should refer the complainant to Mag - Mag shall hear the complainant and take cognizance

When will the Mag be considered as having taken cognizance?

• Janab ‘ Key to Criminal Procedure’ - when the Mag put his mind to the suspected commission of the offence with the objective of deciding whether he should take any judicial action on it

• when the complainant appears before the Mag - he will make a complaint as per s2(1) CPC - Mag has discretion whether to take cognizance - s128

• [Tan Hoe Watt] - must take cognizance before examining the A

Procedure after taking cognizance

s133

• set a date for examination of complainant upon oath and serve written notice to PP at least 7 days before examination date specifying particulars of complaint received

• examine, reduce substance in writing and sign

• [Re Rasiah Munusamy] - should also examine the person complained against on oath after examining complainant

• s135 - dismiss the complaint if no sufficient ground for proceeding OR

• s136 - has sufficient grounds - issue warrant or summons for the A to appear before court

• if A fails to appear in court - no sufficient ground shown for adjournment - crt proceed ex parte to hear and determine the complaint or s173(o) - may adjourn to another day - attendance can be dispensed under s137

• point out offence is compoundable in nature - can be carried out under s260

**s133(1A) &(1B) - if PP gives OTI to police at any stage of the examination, Mag should not proceed with the examination - s135 - PP should also inform Mag that no pros shall proceed for the offence complained of - thus Mag should dismiss the complaint

Failure to comply with s133

[Re Rasiah Munusamy] - insufficient to merely call the complainant to attest to his complaint upon oath - examination that is unsworn or unrecorded - insufficient as well - fatal

Significance of s133

• expedite the process when OTI has not yet been issued by PP - allows complainant access to justice without overstepping PP’s right to issue an OTI

• to ascertain facts and separate unfounded claim from substantial cases

• to prevent innocent persons from being put in police custody

• help Mag judge whether there are grounds for investigation and for proceedings