Topic 1 Introduction

Criminal Procedure Law I
CRIMINAL PROCEDURAL LAW

Topic 1: Introduction
Applicable law for Criminal Process

● The process of criminal justice in Malaysia is governed by the following legislation –
o Criminal Procedure Code (Revised 1999) (Act 593) (Main Statute)
▪ Lim Hung Wang & Ors v PP [2011] 9 MLJ 752, HC
 “In our country, 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 i.e. with the commission of the offence to the
conclusion of the judgment for that particular case.”
▪ Object of CPC
 Goh Keat Peng v PP [2001] 3 MLJ 172, HC
o “It is to be noted that the relevant provisions of the CPC… have been
enacted with the primary purpose of ensuring proper conduct of the
prosecution of an offence and to prevent injustice meted out on any
party.”
o (Followed by COA in Sukma Darmawan Sasmitaat Madja [2007] 5
MLJ 666
o Courts of Judicature Act 1964 (Act 91)
o Subordinate Courts Act 1948 (Act 92)
● The principal legislation which provides the basis/ framework for the criminal process is the CPC
o Main statute governing criminal procedure in Malaysia.
o A revision of the CPC of the FMS 1935 (FMS Cap 6)
o Extended to the whole M’sia in 1976 - CPC (Amendment and Extension) Act 1976 (Act
A324) (10/1/1976)
● The following statutes also provide for and regulate criminal procedure –
o Arms Act 1960 (Revised 1978)
o Child Act 2001
o Dangerous Drugs Act 1952 (revised 1980)
o Firearms (Increased Penalties) Act 1971 (Revised 1980)
o Kidnapping Act 1961 (Revised 1989)
● The following statutes are no longer in force [wef 21/6/2012 pursuant to annullment under Art
150(3) FC of the 3 Proclamations of Emergency passed by Dewan Rakyat on 24/11/2011 and Dewan
Negara on 20/12/2011]–
o Internal Security Act 1960 (Revised 1972)
o Essential (Security Cases) Regulations 1975 [P.U. (A) 320/1975]
Criminal Procedure Code

● CPC falls under the category of procedural law.
o Procedural law: Law governing the manner to which rights under criminal law can be
enforced (how). It is used to administer the substantive law.
o Object of Procedural Law
▪ Foo Yong Fong & Anor v Regina [1962] 28 MLJ 156, COA
 “…forms and procedures… are not intended or devised in order to put
obstacles in the way of …the prosecution. They are designed to ensure that
the issues to be determined are fairly and clearly stated, so that … the
accused in a criminal case knows the case that he has to meet and is not placed
in a position of embarrassment.”
● Generally, the provisions are imperative (mandatory).
o Secretary of State for Defence v. Warm / Reg. v. Warn [1970] AC 394, 402
▪ Lord Hodson:
 "Procedural sections are usually mandatory and there is nothing which points
to the contrary in this case ".
o The effect of non-compliance = illegality/nullity i.e. vitiate proceedings
o Bunya ak Jalong v PP [2015] 5 CLJ 893 – non-compliance of S.163 (joint trial)
▪ Issue: Whether the four charges can be tried at one trial
▪ Facts: The 4 offences the Appellant was charged with are rapes, which are offence of
the same kind and within 12 months. During the trial, the trial of the accused was
prohibited by S.164 of PC which limits the number of offences of the same kind he
may be charged and tried with in one trial to three, regardless whether in respect of
the same person or not.
▪ Relied on PP v Ridzuan Kok Abdullah (supra) to Babulal Chaukhani v. King
Emperor AIR 1938 PC 130 that the Court must determine whether the acts were
committed in the same transaction or not at the time the charge was framed and
not at the end of trial.
▪ S.163 of CPC: every distinct offence of which any person is accused there shall be a
separate charge, and every such charge shall be tried separately, except in the cases
mentioned in sections 164, 165, 166 and 170. Therefore, when a trial is in breach of
section 163 and not saved by section 164 or 165 of the CPC, it constituted an
illegality which cannot be cured under section 422 of the CPC
▪ Held: though the alleged incidents in this case, regardless the incidents were in
different months, involve the same accused, same victim, same offence and same
place, they involve separate offences of rape. Failed to see how 4 rapes, and over 4
separate months, can be seen as one transaction even if by the same accused upon the
same victim and in the same place.
o Capt. Kamarul Azman Jamaluddin v Lt. Col. Wan Abdul Majid Abdullah [1983] 1 CLJ
227, PC (Reg. v. Warn)
▪ In Court Martial, the oath was administered to the president and each member of the
court and to the judge-advocate by an Islamic religious teacher instead of by the
judge-advocate as prescribed by the Rules of Procedure.
▪ Held: failure to observe the mandatory provision of the Rules of Procedure is
undoubtedly a serious matter but in this case the administration of the oath by a
person who was not the prescribed person was an error of procedure which did not go
to the constitution of the court.
▪ In this case the failure to comply with the rules did not lead and could not reasonably
be expected to lead to substantial and grave injustice being done and therefore the
appeal should be dismissed.
o Mersing Omnibus v Minister of Labour & Manpower [1983] CLJ Rep 266 (Sec of State
for Defence v. Warm)
▪ “Procedural sections are usually mandatory and there is nothing which points to the
contrary in this case", referred to Secretary of State for Defence v Warn.
▪ In the matter before us the terms of Order 53 rules 1 and 1A clearly reflect the
imperative requirements which must be complied with before an application for
certiorari can be made.
o Secretary of State for Defence v. Warm / Reg. v. Warn [1970] AC 394, 402, Lord Hodson:
▪ " Procedural sections are usually mandatory and there is nothing which points to the
contrary in this case ".
▪ Followed by Kamarul Azman & Mersing Omnibus
● However: There are circumstances where the provision is regarded as mere directory / guide
o Effect?
▪ - curable under s.422 if does not cause failure of justice
▪ - the effect is mere irregularity & will not vitiate proceedings.
o e.g. Miss Rossarin Nuekaew v PP [2017] MLJU 1156 – non compliance of S.402B (written
statement)
▪ 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.
o Hee Nyuk Fook v PP [1988] 2 MLJ 360
▪ 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 of the other
o Howards v Bodington (1877) 2 PD 203
▪ 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 to the object of the Code and decide in that
order whether the matter is imperative or only directory
● Historical
CPC of the FMS 1935 CPC

4 CPCs (FMS Cap 6) (Act 593)
Development
- CPC of the FMS 1935 - extended to the whole M’sia CPC of the FMS was
- CPC of the SS in 1976 by CPC (Amendment revised in 1999
- CPC of Sabah and Extension) Act 1976 (Act (4/4/1999)
A324) (10/1/1976)
- CPC of Sarawak - repealed the other CPCs.
● Important amendments
o Criminal Procedure Code (Amendment) Act 2009 [A1350]
▪ cif 01.05.2009
▪ Chapter XXV relates to mode of taking and recording evidence in inquiries and trials.
▪ The amendments insert ss 272C – 272K.
▪ The new provisions set out the procedure and manner evidence may be taken by
electronic means.
▪ By the amendments too, the CJ may, where necessary, issue Practice Directions
relating to the use of mechanical means and nay matter relating to it.
o Criminal Procedure Code (Amendment) Act 2010 [A1378]
▪ cif 01.06.2012
o CPC (Amendment) Act 2010 Amendment Act 2012 (Act A1422)
▪ amend s.172A, S.172B, s.172C,s.172D,s.172E,s.172F
▪ new s.172G
▪ new s.173 (m)(ii) - impact statement
▪ new s.183A
▪ Pre-Trial conference – s 172A
▪ Case management – s 172B
▪ Plea Bargaining – s 172C
▪ Victim’s or family impact statement – s 173(m)(ii)/s 183A
▪ Lesser restriction for alibi – s 402A
▪ Proof by written statement – s 402B
▪ Proof by formal admission – s 402C
▪ Disposal of seized exhibits – s 407A
▪ Order for payment of costs of prosecution – s 426
o CPC (Amendment) Act 2012 (Act A1423)
▪ new S.51A - Discovery
▪ amend s.283
o CPC (Amendment) Act (No.2) 2012 (A1431)
▪ S.116 on search and seizure
▪ new section 388, 390A, 390B, 390C, 455 – electronic monitoring
o CPC (Amendment) Act 2016 (Act A1521)
▪ came into operation on 1 March 2017, except s.17, 18 & 19.
▪ amend s.402B(1): no requirement of consent
▪ new s.425A: trial in absence of accused
▪ amend the First Schedule
▪ electronic monitoring on bail
● Code
o Intended to be exhaustive
o Karpal Singh v PP [1991] 1 CLJ Rep 183, SC
▪ The Code, as its name suggests was intended to be an exhaustive pronouncement
of the criminal procedure… The pronouncement and effect of the Code leave no
lacuna under normal circumstances.
o The provisions of CPC are exhaustive as to the matters to which they relate.
o Shaafie @ Mohammad bin Saibi v Pendakwa Raya [2009] MLJU 31
▪ …in the trial of a criminal case, it is not permissible to resort to procedure not
sanctioned by law and the provisions of the Criminal Procedure Code are exhaustive
of the matters to which they relate.
o Courts cannot override the express provisions of the CPC
▪ Karpal Singh v PP [1991] 1 CLJ Rep 183
▪ “The inherent power apparently cannot be invoked to override an express provision of
law or when there is another remedy available. Where the Legislature has provided a
particular mode of action or has vested an authority with powers to act in a particular
manner and has prescribed the conditions limiting the scope of such action, the Court
cannot act outside those powers and conditions.”
o The provisions of the CPC cannot override any provision of the CJA and SCA
▪ S.4 CJA
 In the event of inconsistency or conflict between this Act and any other
written law (e.g. CPC) other than the Constitution in force at the
commencement of this Act, the provisions of this Act shall prevail.
▪ Lorraine Phylis Cohen v PP[1989] 2 MLJ 288, SC
 “S.278 of the CPC falls within ‘any other written law’ and could not override
any provision of the CJA 1964”
▪ S.109 SCA
 In the event of inconsistency or conflict between this Act and any other
written law in force at the commencement of this Act, the provisions this Act
shall prevail.
o Marginal/Shoulder Notes
▪ An aid for easy reference and brief guide to the content of the section
▪ Example:
 Trial of offences under Penal Code and other laws
o 3. All offences under the Penal Code shall be…
 Saving of powers of High Court
o 4. Nothing in this Code shall be construed…
▪ It is treated as part of the Act and may be referred to for assistance in interpreting the
statute
 Re Tan Keng Tin [1932] MLJ 134, Terrell J held
o “…as in the Colony, the marginal notes are treated as part of an
Ordinance and are discussed and even amended in Committee, there
would appear to be no reason why they should not be referred to assist
the interpretation of the section”.
 Aziz Bin Muhamad Din v Public Prosecutor [1996] 5 MLJ 473
o It is settled law that a marginal note serves as a guide to the
interpretation of a section. The marginal note to s 73A Evidence Act
states that it relates to the 'Admissibility of documentary evidence in
civil cases, etc'. The abbreviation 'etc' in the note makes it abundantly
clear that the admissibility of documentary evidence in civil cases is
only one of the matters that the section covers. Thus the section is not
restricted in its application just to the admissibility of documentary
evidence in civil cases.
 Kok Wah Kuan v PP [2007] 4 CLJ 454, COA
o “…marginal notes are admissible guides to statutory interpretation.
Indeed:
▪ It is now well settled that a marginal note is a part of the
section. It is the key to open the mind of the legislature by
affording guidance in understanding their intendment.
 Ratnam Alfred Christie v PP [1999] 3 SLR(R) 685
o The judicial approach to marginal notes was that such notes were
accepted as part of an Act and may be referred to for assistance in
interpreting the statute.
▪ However, since the marginal note only provide a brief guide to the content of the
section, it is not mandatory for the court to follow
 Example:
o The marginal note on S.294 states – “First offender”
 PP v Yeong Yin Choy [1980] 2 MLJ 80
o the court found that the marginal note is misleading and does not
project the true purpose of the section. It was held that s.294 is not
limited to first offender.
● Schedules
o Schedule1- 7 Columns
▪ (1) PC Sections; (2) Offence (3) Seizable/not; (4) Summon/Warrant; (5)Bailable/not;
(6) Compundable/not; (7) Max Punishment
o Schedule 2 - Forms 1 -55
o Schedule 4 – Procedure on Body Search
First Schedule
Fourth Schedule
[Tabular Statement of
[Procedure on Body
Offences under Penal
Search]
Code]
9 Parts
44 Chapters
444 Sections
Third Schedule Second Schedule

[Deleted] [Forms]
Approach in interpretation of provisions in CPC
• S.2(3):
• All words & expressions used herein [CPC] and defined in the PC/Police Act 1967 (PA), and
not herein before defined [by CPC] shall be deemed to have the meanings attributed to them
by that Code [PC]/that Act [PA], as the case may be.
• Must apply the definition in CPC first before other Acts. If the words used in the CPC is not being
defined, can apply the definition in the PC & PA.
• E.g.: ‘Inspector’ is defined under S.2(i) CPC as ‘Inspector of Police of any class but does not
include a Sub-Inspector’.
• Abdul Ghani bin Jusoh [1981] 1 MLJ 25
• The then FC appeared to have erred in this regard when it straightaway referred to the
provisions of the PA 1967 in deciding whether a Probationary Inspector was as ‘Inspector’
for the purpose of S.113(1).
• -A ‘probationary inspector’ would be considered to be an ‘inspector’ for the purpose of
s.113(1) of CPC.
• PP v Yeong Yin Choy [1976] 1 LNS 119 HC
• It is not limited to first offender (shoulder notes only provide an aid for easy reference, does
not affect the construction of the code.E.g, s.294 states on the shoulder note regarding the
first offender)
Definition
Crime
● Having identified that the criminal process is part of the State response to crime, what then
constitutes a crime?
● Crime is –
o Black’s Law Dictionary:
o “a social harm that the law makes punishable; the breach of a legal duty treated as the
subject matter of a criminal proceeding.”
o Halsbury’s Laws of England:
□ “an unlawful act or default which is an offence against the public and renders the person
guilty of the act or default liable to legal punishment.”
Offence
● Curiously, the word “crime” is not used and defined in the Malaysian statutes.
● The word used and defined is “offence”.
o s 40 Penal Code (Revised 1957) (Act 574) [PC]
▪ Except in the Chapter and sections mentioned in subsections (2) and (3), the word
“offence” denotes a thing made punishable by this Code.
o s 2(1) CPC
▪ “offence” means any act or omission made punishable by any law for the time being
in force;
● An offence is further distinguished by the CPC as:
o “seizable offence” and “non-seizable offence”;
o “bailable” and “non-bailable”
● The CPC also differentiates between “summons case” and “warrant case”.
Seizable Offences
● S.2(1) CPC
o defines seizable offence as an offence which leads to a seizable case where a police officer
may ordinarily arrest without warrant according to the third column of the FIRST
SCHEDULE.
● may arrest w/o warrant
● For PC offences: refer 3rd Column, 1st Schedule
● For Non-PC offences: refer that specific statute. If silent – refer 1 st Schedule, Last Part - punishable
with imprisonment more than 3 yrs/death
● The police may proceed with investigation of criminal offence without prior Order to Investigate
(OTI) from the Public Prosecutor.
● S.23(1)(a) CPC - When police or penghulu may arrest without warrant
● PDRM v Audrey Keong Mei Cheng [1994] 3 MLJ 296 (HC)
● A woman corporal arrested the accused in a case related to criminal breach of trust under
s.409 PC which is a seizable offence.
● The court held the woman corporal was not the right person to arrest because based on
ss.108(3), 109 & 110 of the CPC, the provisions seem to confer powers to police officers not
below the rank of Sergeant.
● Masa ak Nangkai & Ors v Sgt Edwin Nancha & Anor [2004] 6 AMR 548
● To make a lawful arrest under S.23(1)(a), the police must show that they had credible
information or held a reasonable suspicion that the first P was involved in a seizable offence
Non seizable offences

● S. 2(1) CPC
o “non-seizable offence” means an offence for which and “non seizable case” means a case in
which a police officer may not ordinarily arrest without warrant according to the third column
of the First Schedule
● For PC offences: refer 3rd Column, 1st Schedule
● For Non-PC offences: refer that specific statute. If silent – refer 1st Schedule, Last Part
o (punishable with imprisonment less than 3 yrs/with fine only)
● Specifically, for a non-seizable offence, there has to be an order to investigate (OTI) from the PP or
the DPP.
● The OTI will be a condition precedent before an investigation proceeds on a non-seizable offence.
The rationale for an OTI to investigate a non-seizable offence is simply because such offences are by
and large trivial in nature.
● The PP, as such, acts to filter unmerited complaints where they disclose no offence or where the
complaints are frivolous in nature. Only if a complaint relating to a non-seizable offence merits an
investigation, will an OTI will be issued. In the meantime, the police cannot exercise the special
powers of an investigation provided by the CPC unless and until an OTI is issued.
● Chan Ah Moi v Phang Wai Ann [1995] 3 MLJ 130
o Justice Abdul Malik Ishak (as he then was) said:
▪ “The police must first determine the nature of the offence before deciding on the
next course of action. If the offence is non-seizable in nature, the police will conduct
an investigation upon receipt of an order to investigate from the deputy public
prosecutor. An investigation of a non-seizable offence without an order to
investigate from the deputy public prosecutor would render whatever evidence
collected illegal.”
● PP v Cha Chor Kian [1998] 1 MLJ 167
o Justice Suriyadi Halim (as he then was), said:
▪ “For purposes of non-seizable offences, no investigation may be carried out unless
‘an order to investigate’ clearance is obtained first from the PP.
▪ As to which party having the power to investigate, the learned judge said:
● “For non-seizable offences, no investigation may be carried out by the
prosecution as it is conducted solely by the police or other lawful enforcement
agencies. It is trite law that it is the police and not the prosecution who are
given the powers to arrest, detain or to seize properties in an authorised
manner.”
● “The police whilst in the process of any investigation or carrying out of their
duties will be bound by all the provisions in the Police Act 1967, Criminal
Procedure Code and the Federal Constitution, eg Art 5(3).”
● S.24(1) CPC
o A police or penghulu may arrest without warrant any person who commits/accused of
committing a non-seizable offence and
▪ (i) refuses on demand to give name & residence; or
▪ (ii) gives name / residence which the police/penghulu has reason to believe is false
▪ may be arrested in order that his name/residence may be ascertained
o Note: Must be taken before the nearest Magistrate within 24 hours of the arrest
● S.24(3) CPC – may arrest (without warrant)
o person who commits/accused of committing a non-seizable offence; and
▪ - on the demand of a police officer/penghulu to give his name & residence, gives as
his residence a place not within Malaysia.
Bailable Offence
● S.2(1) CPC
o “bailable offence” means an offence shown as bailable in the First Schedule or which is made
bailable by any other law for the time being in force
● Generally, they are offences punishable with imprisonment for less than 3 years and/or with a fine.
● Less serious offence in contrast with non-bailable offence
● The accused person can claim bail as of right and the court or officer in charge of a police station is
bound to release such person on bail
● Maja Anak Kus v PP [1984] 1 LNS 127
o Issue: whether a person accused of bailable offence brought before the Magistrate for remand
under s.117 the code is entitled to bail as of right.
o H: S.387(1) does not override S.117 of the code and a remand is in order
● S.387(1) of CPC
o Whenever any person other than the person accused of a non-bailable offence is arrested or
detained without warrant by a police officer or appears or is brought before a court and is
prepared at any time while in the custody of the officer or at any stage of the proceedings
before the court to give bail, that person shall be released on bail by any police officer in
charge of a police station or by any police officer not under the rank of Corporal or by that
court.
● S.117 CPC - Procedure where investigation cannot be completed within twenty-four hours
o Whenever any person is arrested and detained in custody and it appears that the investigation
cannot be completed within the period of twenty-four hours fixed by section 28 and there are
grounds for believing that the accusation or information is well founded the police officer
making the investigation shall immediately transmit to a Magistrate a copy of the entries in
the diary hereinafter prescribed relating to the case and shall at the same time produce the
accused before the Magistrate.
● R v Lim Kwang Seng & Ors [1956] MLJ 178
o H: bail should be offered since rioting is a bailable offence under S.147 of the Penal Code.
Non-bailable Offence
● S.2(1) CPC
o “bailable offence” means an offence shown as bailable in the First Schedule or which is made
bailable by any other law for the time being in force and “non-bailable offence” means any
other offence
● An offence shown as non-bailable in the 1st Schedule or which is made non-bailable by any other law
for the time being in force.
● Unlike unbailable offence, non-bailable offence does not mean that the accused can never be granted
bail but it only means the accused can’t claim bail as of right
● S.388(1) CPC - When person accused of non-bailable offence may be released on bail
o When any person accused of any non-bailable offence is arrested or detained without warrant
by a police officer or appears or is brought before a Court, he may be released on bail by the
officer in charge of the Police District or by that Court, but he shall not be so released if
there appears reasonable grounds for believing that he has been guilty of an offence
punishable with death or imprisonment for life:
▪ Provided that the Court may direct that any person under the age of sixteen years or
any woman or any sick or infirm person accused of such an offence be released on
bail.
● PP v Mat Zain (1948) MLJ Supp 142
o H: In non-bailable offence, bail will be granted at the discretion of the court, hence the
court must consider the gravity of the crime
● PP v Dato Balwant Singh [2002] 4 CLJ 155 HC
o The accused was charged with the offence of murder punishable under S.302 PC.
o According to S.388(1) of CPC, bail shall not be granted in the case of offences punishable
with death and life- imprisonment. However, the accused was proven of unsoundness of mind
and there was no reasonable ground to believe he was guilty.
o There was also no indication to show that he would tamper with the witness. The bail was
granted as the gravity of charge does not weigh heavily against him.
● Dato’ Seri Anwar Ibrahim v PP [2004] 1 MLJ 497
o The appellant was charged with non-bailable offence and had applied for bail.
o However, the court ruled that the appellant if released, might tamper with the evidence of
the prosecution and the witnesses, thus the bail was refused.
● S.389 CPC
o The amount of every bond executed under this Chapter shall be fixed with due regard to the
circumstances of the case as being sufficient to secure the attendance of the person arrested,
but shall not be excessive; and a Judge may, in any case, whether there be an appeal on
conviction or not, direct that any person be admitted to bail or that the bail required by a
police officer or Court be reduced or increased.
● S.311 CPC – where bail can be granted upon stay of execution pending appeal
● S. 315 CPC – Where bail can be granted if the person arrested upon appeal against acquittal
● S.404 CPC – Forfeiture of bail bond (attract when the person accused fails to attend court)
● PP v Chou Tai Chuan & Anor [1988] 1 MLJ 511
o Where the surety had no choice to produce the accused on the relevant dates, she could
not be held responsible for her failure to so produce the accused
Unbailable Offence
● Offences where the court has no discretion whatsoever to grant bail at all
● Not provided in the code, but are found in other provisions of various statutes
● S. 41B (1) Dangerous Drugs Act 1952
o An offence punishable with death or imprisonment more than 5 years; or where the offence is
punishable with imprisonment for five years of less and the Public Prosecutor certifies in
writing that it is not in the public interest to grant bail to the accused person
● S.12 Firearms (Increased Penalties) Act 1971
o Bail shall not be granted to an accused person charged with an offence under this Act
● Internal Security Act 1960; Essential (security cases) Regulation 1975 etc.
Summons Case vs Warrant Case

● Summons Case
o S.2(1) CPC
▪ a case relating to an offence and not being a warrant case
o An offence which is not punishable with death or imprisonment for a term not exceeding 6
months unless provided by the law
o Summon
▪ Not defined in CPC
▪ 2nd Sche Form 1
▪ Generally means a form of process issued by a court ordering him to appear before it,
for a particular charge
▪ S. 35 CPC
 (1) The summons shall if practicable be served personally on the person
summoned by showing him the original summons and by tendering or
delivering to him a copy thereof under the seal of the Court.
 (2) Every person on whom a summons is so served shall if so required by the
serving officer sign a receipt for the copy thereof on the back of the original
summons.
 (3) In the case of a corporation the summons may be served on the secretary or
other like officer of the corporation.
 (4) W here the person to be summoned cannot by the exercise of due diligence
be found the summons may be served by leaving a copy thereof for him with
some adult member of his family or with his servant residing with him.
▪ S 34 – 37 CPC provides for the requirements for the form and service of summons.
o Warrant case
▪ S.2(1) CPC
 “warrant case” means a case relating to an offence punishable with death or
with imprisonment for a term exceeding six months
▪ Warrant
 Not defined in the CPC
 2nd Sche Form 2
 Generraly a warrant of arrest means an order in writing, signed and sealed by
the court authorising a police officer to arrest & bring before the court the
person named therein.
 S. 38 CPC
o (1) Every warrant of arrest issued by a Court under this Code shall be
in writing and signed as provided by the Courts of Judicature Act
1964, or the Subordinate Courts Act 1948, and shall bear the seal of
the Court.
o (2) E very such warrant shall remain in force until it is cancelled by the
Court which issued it or until it is executed.
 S 38 – 43 make provisions for warrant of arrest.
 S 47 – 50 make provisions for issuance of warrant of arrest in lieu of or in
addition to summons.
o Distinction of a summon case and a warrant case
▪ Karpal Singh v PP [1986] 2 MLJ 316
 A lion dance organised by the dap political party was heald w/o a permit. The
accused was allged to have committed an offence under the then S.27(5)(a)
Police Act 1967, punishable with a fine not exceeding RM500 or
imprisonment not exceeding 6 months or both.
 The police applied for and obtained a warrant of arresr issued by the MC. The
accused was arrested & released on police bail. Accused appealed to HC to set
aside the warrant of arrest contending that the magistrate had no lawful
authority to issue a warrant as the offence was a summon case under S.2(1)
CPC
 H: The offence under S.27 Police Act 1967 was a summon case and no
warrarnt was required and a magistrate can only issue a warrant of arrest in
lieu of a summons (in a summons case) if such power is exercised in
accordance with S.47 CPC.
 In this case, S.47 CPC was not satisfied & hence the issue of the warrant was
unlawful.
▪ S.47 CPC - Issue of warrant in lieu of or in addition to summons
 A criminal Court may in any case in which it is empowered to issue a
summons for the appearance of any person other than a juror or assessor issue,
after recording its reasons in writing, a warrant for his arrest—
o (a) if either before the issue of summons or after the issue of the same
but before the time fixed for his appearance the Court sees reason to
believe that he has absconded or will not obey the summons; or
o (b) if at such time he fails to appear and the summons is proved to have
been duly served in time to admit of his appearing in accordance
therewith and no reasonable excuse is offered for such failure.
▪ PC Offences
 4th column of First Schedule CPC
 Concept 1:
o A is charged with offence of CBT under S.406 PC.
o 3rd column First Schedule CPC provides police may arrest without
warrant – seizable offence; 4th column provides S.406 PC – Warrant
case
o Means: 3rd column provides that no warrant is necessary to effect an
arrest where this offence has been committed. Once police
investigation are completed and if the police wish to proceed with the
case, the 4th column provides that a warrant of arrest must be issued to
the accused
 Concept 2:
o B charged with S.323 PC
o 3rd column: shall not arrest without warrant – non-seizable offence; 4 th
column – summons case (summon must be issued)
o Means: 3rd column provides a warrant is required to effect an arrest
where this offence has been committed. Once the police investigation
are completed and if the police wish to proceed wth the case, 4 th
column provides that a summons must be issued to the accused.
However, S.47 CPC provides that a warrant of arresr may be issued in
lieu of summons in certain circumstances.
Complaint vs First
● If it is the State’s duty to response to crime, it is the citizen/public’s duty to ‘inform’ the State of the
commission or suspicion of commission of a crime.
● This may be done by way of –
o report to the police; or
o complaint to the Magistrate; or
o both
Complaint
● S.2(1) CPC
o “complaint” means that allegation made orally or in writing to a Magistrate with a view to
his taking action under this Code that some person whether known or unknown has
committed or is guilty of an offence
● Person who lodges a complaint – Complainant
● Tan Hoe Watt v PP [1980] 2 MLJ 46
o A High Court judge considered the procedure to be adopted when there was a complaint
made by an accused person to the magistrate, before whom the accused person was brought,
of ill-treatment by the police.
o The procedure as explained by the high court judge is as follows:
a) If the complaint is made in writing, proceed to take cognisance if warranted [by
section 128 of CPC] and then proceed as under sections 133, 136 and 137 of CPC;
b) If the complainant makes an oral complaint either in open court or in chambers, then
if the magistrate is not having other important or urgent matter then proceed to hear
the complaint and take cognisance if needs be. Otherwise request the complainant
make a written complaint and thereafter proceed as under (a) above;
c) If the oral complaint is made by a person who is being produced before the magistrate
for remand or for an extension of remand, where there is difficulty in filing a written
complaint and where there is allegation of police assault, then the magistrate should
proceed to hear the complaint straight away if he is free and if he is not free then fix
another earliest available date to hear the complaint. The magistrate may advise the
complainant to lodge a police report if he has not done so and order that the
complainant be medically examined if there is an allegation of assault. If there is any
difficulty of getting an early date of hearing, the magistrate should consult the
Sessions Court president with a view of getting another magistrate to hear the
complaint;
d) If the complainant makes the complaint at the beginning of the hearing of the case in
which the complainant is an accused person, then preferably the magistrate should not
take cognisance of the complaint as in not making the complaint earlier, the
complainant obviously seeks to delay the trial. The complainant can nevertheless file
the complaint even after the criminal case against him has been completed.
First Information Report (FIR)
● Not defined in the CPC
● The Law Lexicon
o A FIR is the first report of the alleged offence. A FIR can be given orally and/or in writing
and enables the police to start investigating
● Usually lodged to a police officer
● Person who gives the report – informant
● S.107 CPC
o (1) Every information relating to the commission of an offence, if given orally to an officer
in charge of a police station, shall be reduced to writing by or under his direction and be
read over to the informant.
o (2) Every such information shall be entered in a book to be kept by that officer, who shall
append to such entry the date and hour on which that information was given, and whether
given in writing or reduced to writing as aforesaid shall be signed by the person giving it.
● PP v. Dato’ Seri Anwar Bin Ibrahim (No.3) [1999] 2 MLJ
o In the context of section 107(1) CPC, the word ‘information’ means ‘something in the
nature of a complaint or accusation or at least information of a crime, given with the
object of putting the police in motion in order to investigate, as distinguished from
information obtained by the police when actively investigating a crime
● PP v Leonard [1960] 1 MLJ 13
o “information’ is a statement relating to a commission of an offence made to a police officer
under S.107 CPC
o “complaint” is an allegation made to a magistrate with a view to his taking action under
the CPC
Complaint FIR
It’s defined under S.2 CPC Not defined in the statute
It’s an allegation made orally or in writing to a It’s information given to a police officer as to the
magistrate as to the commission of an offence commission of an offence
The complainant must take an oath The informant need not take oath
The complaint itself is regarded as substantial GR: FIR is not substantial evidence
evidence
Investigation, Inquiry, Trial

Investigation
● Generally, an investigation is always conducted by a police officer or some other authorised person
(other than a magistrate).
● Includes all the proceedings under the CPC for the collection of the evidence
● The police officer conducts the investigation & collects evidence for the purposes of inquiry & trial
by the court
● Whether investigation has commenced or not is quite important in criminal trial, for the law restricts
the admissibility of investigation report, and the availability of the police report to the accused or co-
accused
● The police officer or any other person who has been authorized by a Magistrate on his behalf is
competent to investigate.
● Steps of Investigation
oProceeding to the spot where the offence has been committed.
oAscertain the facts and circumstances of the case.
oDiscovery and arresting the suspected offender.
oCollecting evidence of the offence that may consist of:
oExamination of various persons (including accused) and reduction of his statement into
writing, if it is deemed fit by the officer.
o The search and seizure that are considered necessary for investigation and to produce before
trial.
● 2 ways to commence the investigation:
o The police officer in charge has the authority to investigate when the FIR is lodged.
o When the complaint has been made to the Magistrate then any person who has been
authorized by the Magistrate can investigate in this regard.
● S.107 CPC – S.117 CPC (Sections regarding investigations)
Inquiry
● S.2(1) CPC
o “inquiry” includes every inquiry conducted under this Code before a Magistrate
● Every inquiry or question or examination other than a trial conducted under CPC by a magistrate or
court and it refers to the determination of any question other than guilt or innocence
● Inquiry stops when the trial begins
● Types of Inquiry
o Judicial Inquiry
o Non-Judicial Inquiry/ Administrative Inquiry
o Preliminary Inquiry
o Local Inquiry
o Inquiry into an offence
o Inquiry related to matters other than an offence
Trial
● Is a proceeding which involves examination and determination of a cause by a judicial tribunal,
which has jurisdiction over it
● It’s a judicial process, which ends in conviction or acquittal of the accused.
● It’s understood that a trial is a judicial determination of any question relating to guilt or innocence of
the accused
● Function of court in criminal trial
o To find out whether the accused is guilty of the offence with which he has been charged
o To find out whether there’s any evidence which is reliable on the basis which it’s possible to
find the conviction of the accused
● S. 85 SCA – Trial / hearing Jurisdiction of 1st Class Magistrate’s Court
o (i)All cases where the max sentence not exceeding 10 years imprisonment/with fine only,
o (ii) also offences under s.392 (robbery-14yrs) and s.457 (housebreaking by night-14yrs).
● S.88 SCA – Trial / hearing jurisdiction of 2nd Class Magistrate’s Court
o All cases where the max sentence not exceed 12mths imprisonment/with fine only/ a
combination of both
● S. 63 SCA – Trial / hearing of the Sessions Court
o All cases EXCEPT those punishable with death
o Nadarajah [2000] 4 MLJ 373
▪ “S.85 of the Act does not oust the jurisdiction of the Sessions Court in respect of
offences falling within the jurisdiction of the Magistrates' Court.”
● S. 22(1) CJA – Trial / hearing jurisdiction of High Court
o All offences
● S.81 CJA – Trial / hearing jurisdiction of Federal Court
o The Federal Court for the purposes of its jurisdiction under A. 128(1) and (2) of the
Constitution (herein called the - original jurisdiction) shall have the same jurisdiction and
may exercise the same powers as are had and may be exercised by the HC.
Investigation Inquiry Trial
This is the 1st stage that the The accused will undergo this 3rd stage of the accused person
accused will undergo stage as the 2nd stage
Conducted by a police officer or Conducted by the court or a Conducted by the court or a
an authorised person other than a magistrate magistrate
magistrate
Investigation is not defined in the Inquiry is defined in the S.2 CPC Not defined in the CPC
CPC
The purpose of an investigation is The purpose of inquiry is judicial Purpose is determination of any
to collect evidence for inquiry determination other than guilt or question relating to guilt or
and trial innocence innocence
S.3 of CPC: Trial of offences under Penal Code and other laws
● All offences under the PC shall be inquired into and tried according to the provisions hereinafter
contained (CPC), and all offences under any other law shall be inquired into and tried according
to the same provisions (CPC) subject however to any written law for the time being in force
regulating the manner/place of inquiring into/trying such offences.
● GR: All offences under the PC & offences in statutes other than PC are to be tried according to
the CPC.
o Lim Hung Wang & Ors v Public Prosecutor [2011] 9 MLJ 752
▪ The court had no power to review its own finding of prima facie case at the
end of the prosecution’s case. If the Legislature had intended to vest such power
in the High Court, it would have been expressly so enacted in s 180(3) of the CPC
in particular or Chapter XX of the CPC in general.
▪ Since the court’s power to hear criminal cases was regulated by Chapter XX of the
CPC, allowing inherent power to exceed such power would not only cause chaos
to the administration of the criminal justice system but open the door to a number
of applications in the course of criminal trials which would frustrate proceedings
and bring them to a halt at all levels of criminal courts
● Exception: If a specific statute lays down a specific procedure, the provision will prevail.
o Maxim ‘generalia specialibus non derogant’ (general things do not derogate from special
things) applies
o Example of other Specific Statute with Procedure
▪ Firearms Increased Penalties Act 1971 (FIPA) (S.11 & 12)
▪ Customs Act 1967 (Part VII & VIII)
▪ Sedition Act 1948 (S.5, s.8 & s.11)
▪ Official Secrets Act 1972
▪ Immigration Act 1959/63 (Part VI)
▪ Security Offences Special Measure Act 2012 (SOSMA)
o Eg: under First Schedule of CPC (general provision) there are bailable offences.
However, under S.41B of Dangerous Drugs Act (specific provision) mentions that no
one can be given bail over the provision in CPC. The provision in DDA shall prevail over
the provision in CPC
o PP v Chu Beow Hin [1982] 1 MLJ 135 FC
▪ In the absence of any express provisions of the Price Control Act, the Court can
only exercise the provisions of s.407 of the CPC.
o PP v Chew Siew Luan [1982] MLJ 119 FC
▪ Dangerous Drugs Act 1952 - Being a general legislation must ex-necessitate yield
to the specific provision of S.41B of DDA relating to bail.
o PP lwn. Mohammad Firdaus Hadie & Yang Lain [2016] 3 CLJ 488
▪ In the conflict between S.4(1)(a) Prevention of Crime Act 1959 and S.117 CPC,
S.4(1)(a) Prevention of Crime Act 1959 will prevail and should be followed.
o Hanizam Hassan Lwn. Pengerusi Lembaga Pencegahan Jenayah & Yang Lain [2015]
5 CLJ 223
▪ Doctrine of generalia specialibus non derogant is applicable here, where in the
conflict of S.4(1)(a) & S.4(2)(a) Prevention of Crime Act 1959 and S.117 CPC, S.
117 CPC is a general provision and it does not apply if there is already a
specific provision, hence, the specific provision in the Prevention of Crime Act
1959 will prevail.
o Loy Chin Hei v PP [1982] 1 MLJ 31
▪ Section 41B of the Dangerous Drugs Act, being a particular subsequent
legislation, 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, i.e., the Criminal Procedure Code.
▪ When an Act enacts something in general terms and afterwards another Act on a
particular subject introduces in express terms special restrictions on that subject,
then the rule of construction demands that the provisions in the subsequent
particular legislation should prevail and the provisions of the earlier legislation
deemed curtailed or restricted to the extent of its inconsistency with the later
legislation but not necessarily repealed.
▪ S.41B DDA will prevail over the provisions in CPC on bail in cases under DDA.
o However, if a specific statute is silent on the specific procedure to be followed, the
procedure in the CPC shall be applicable.
▪ PP v Ayar & Ors [2010] MLJU 520 – Fisheries Act 1985
● If…the particular statute…is silent on the procedure to be followed…the
procedure laid down in the CPC shall then be applicable.
▪ PP v Chu Beow Hin [1982] 1 MLJ 135 FC
● In the absence of any express provisions of the Price Control Act, the
Court can only exercise the provisions of s.407 of the CPC.
▪ Koay Ban Siew v Public Prosecutor [1948] 1 MLJ 54
● In the absence of the express provision in the Custom Enactment 1936,
then the court will exercise S.302 and S.306(3) of CPC
▪ Public Prosecutor v Datuk Haji Dzulkifli [1982] 1 MLJ 340
● Since the Ordinance 22 of 1970 lays down no provision relating to the
alteration of charges, S.158-163 of the CPC was then exercised and used
by the court.
S.4 of CPC: Saving powers of High Court
● Nothing in this Code shall be construed as derogating from the powers of the HC.
o Known as non derogation clause & meant to assist the courts in interpreting legislation.
o CPC does not limit power & jurisdiction of HC. CPC guarantees that its provision does
not derogate/detract from the powers & jurisdiction inherent in HC & conferred by any
other law on the HC.
● In a situation where the CPC is silent on certain power (lacuna), the HC may still exercise that
power as it has inherent power over all criminal matters pursuant to the CJA. (Not necessary to
apply English Law)
● Other special power of HC is not affected by CPC.
o e.g. contempt of court - Inherent power of court
o HC jurisdiction under CJA such as revisionary power
● CPC guarantees that its provision does not derogate/detract from the powers & jurisdiction
inherent in HC & conferred by any other law on the HC.
● PP v Saat Hassan [1988] 2 CLJ (Rep) 290
o “This section 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.”
● S Selvanathan v Pendakwa Raya [1994] 4 CLJ 818
o The CPC does not restrict/reduce the power of the HC
● Tan Boon Hock v PP [1979] 1 MLJ 236
o The power of an appellate court to order a retrial on a proper charge before another
magistrate when it is of the opinion that an accused was convicted on a wrong charge is
discretionary.
o s.4 of the CPC says nothing in the Code shall be construed as derogating from the
powers/jurisdiction of the High Court. Thus, the appellate jurisdiction of the High
Court is clear.
● Dato’ Mat Safuan v PP [1991] 2 CLJ 1112
o 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 1964 as the words "In addition to the powers conferred on the
High Court by this or any other written law" must refer to other additional supervisory or
revisional powers over and above those powers which are already contained in the Courts
of Judicature Act itself as well as in any other written law such as the power conferred by
the CPC.
o If the High Court is to fulfil its supervisory role in providing a speedy and efficacious
redress of any injustice arising out of a person's pre-trial detention, then it must be
given an unimpeded discretion to intervene and if circumstance so require, to vary
any unjust Subordinate Court order in respect of the amount or conditions set out in any
bail bond.
● PP v Mohd Bandar Shah bin Nordin [2005] 2 MLJ 349
o This court will not allow any party who come before this court to have disregard to the
tragic consequences which would follow if the truth is suppressed and disallowed to
prevail where the innocent is convicted and the guilty is acquitted. The learned DPP as an
officer of the court, with respect must not abdicate his or her duty to share the
responsibility with the view to ensure that the truth must always prevail and should not
under any circumstances attempt to conceal from the court materials which may assist the
trial court to determine the truth of a witness's testimony in court.
o If the accused cannot be allowed to seek justice in court which is owed to him, where else
is he expected to obtain that purity of justice.
o "..... a court in a criminal case would have, generally speaking to balance the interest of
the prosecution on the one hand against those of the accused on the other”
● Husdi v PP [1980] MLJ 80
o when a prosecution witness is being cross-examined, and the defence proposes to
impeach his credit, the court, should, on the request of the defence, refer to his police
statement and may then, if the court thinks it expedient in the interest of justice, direct the
defence to be supplied with a copy.
● Hari Ram Seghal v PP [1981] MLJ 165
o The powers of the courts in England to intervene and make rules not provided in the
criminal procedure are inherent and are exercisable to correct any injustice.
o The power to make rules such as the Judges' Rules, notice of additional evidence and
power to expunge words from records are some examples of this inherent power. By
virtue of section 5 of the Criminal Procedure Code, the use of this power could be
extended to this country provided it does not conflict with our statutory provisions.
● Karpal Singh v PP [1991] 2 MLJ 544
o The English doctrine of inherent jurisdiction is hardly applicable in the subordinate courts
but the High Court may invoke such prerogative powers in rare instances where it is
right to do justice to the accused. There is hardly any room for transplantation of any
English practice or other systems of law in the magistrate's court under the Code.
o In matters like criminal law of a purely domestic nature, the view is that the court will
only exercise its inherent powers when there is miscarriage of justice. The court must
be careful that the decision is not in conflict with the intention of the legislature as
indicated in statutory powers.
o The inherent power apparently cannot be invoked to override an express provision
of law or when there is another remedy available. Where the legislature has provided a
particular mode of action or has vested an authority with powers to act in a particular
manner and has prescribed the conditions limiting the scope of such action, the court
cannot act outside those powers and conditions.
S.5 of CPC: Laws of England, when applicable

● Karpal Singh & Anor v PP [1991] 2 MLJ 544
o The CPC was intended to be an exhaustive pronouncement of the criminal procedure.
o But, it cannot/be said to be comprehensive
● Thus, where a lacuna in the law in Malaysia exists, English criminal procedure law shall be
applied so far as the same shall not conflict or be in consistent with the CPC and can be
auxillary thereto.
● As regards matters of criminal procedure for which no special provision has been made by this
Code/by any other law for the time being in force (lacuna) the law relating to criminal procedure
for the time being in force in England shall be applied so far as the same shall not conflict / be
inconsistent with this Code and can be made auxiliary thereto.
● S.5 allows reference to law (CL & statute) relating to criminal procedure for the time being in force
in England
o Conditions:
▪ whenever there is a lacuna
▪ (English law must not conflict/inconsistent with CPC
● Karpal Singh v PP [1991] 2 MLJ 544 SC
o “S.5 of the Code is indicative of the principles to be applied by local Courts.”
o This section provides for English law relating to criminal procedure to be applied when there
does not exist any special provision on the matter either in the Code or any other existing law.
o English law is applicable insofar as it does not 'conflict or be inconsistent with this Code
and can be made auxiliary thereto.' The pronouncement and effect of the Code leave no
lacuna under normal circumstances.
● PP v Sanassi [1970] 2 MLJ 198
o “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.”
● Mohamed bin Jamal v PP [1964] MLJ 254
o fresh evidence
o 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.
● Hari Ram Seghal v PP [1981] 1 MLJ 165
o – revisionary power of High Court
o The powers of the courts in England to intervene and make rules not provided in the
criminal procedure are inherent and are exercisable to correct any injustice. The power
to make rules such as the Judges' Rules, notice of additional evidence and power to expunge
words from records are some examples of this inherent power. By virtue of section 5 of the
Criminal Procedure Code, the use of this power could be extended to this country provided it
does not conflict with our statutory provisions.
● Dato’ Mokhtar Hashim v PP [1983] CLJ (Rep) 101
o voluntary confession
o All that an accused person need do is to cast a reasonable doubt and that he does not in
putting forward an alibi as an answer to a charge assume any burden of proving that answer,
and we have been referred to English cases to this effect in support of this submission.
o The position here however would appear to be different in view of the provisions of s. 402A
of the Criminal Procedure Code with regard to notice to be given of a defence of alibi which
was added by way of amendment to the Code with effect from 10 January 1976.
o The concluding words of s. 402A(2) 'for the purpose of establishing his alibi' are significant
and would seemingly put a probative burden on an accused.
o The position in England would appear to turn on the specific provisions of s. 11 of the
Criminal Justice Act 1967 and we would refer in particular to the provisions of sub-
section (1) and the definition of 'evidence in support of an alibi' in sub-section (8) thereof.
● Re Kah Wai Video (Ipoh) Sdn Bhd [1987] 2 MLJ 459
o seizure of unschedule articles in the search warrant
o 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.
o Court found support in English cases.
● Ong Lai Kim v PP [1991] 3 MLJ 111
o identification parade using a one-way mirror
o In this case, it is correct to follow English case which provides identification parade by
using one way mirror to identify accused person since our CPC is silent on the manner to
identify accused person under custody of police and no local case deal with this matter
● Hasibullah bin Mohd Ghazaliv PP [1993] 3 MLJ 321
o voluntary confession
o There is high authority for the proposition that the 'voluntariness' test has been expanded to
include within its ambit, statements which are rendered inadmissible by reason of the fact that
they were obtained under oppressive circumstances. It is true that the provisions of proviso
(a) to s 37A(1) of the Act which repeat s 24 of the Evidence Act 1950, do not provide for this
as a ground for excluding a confession by an accused person, but the authority to which we
shall be referring in a moment, appears to have incorporated the common law.
o The court applied the definition of oppression propounded by Sach J in R v Priestley 10
as 'something which tends to sap and has sapped that free will which must exist before a
confession is voluntary', which was adopted in R v Prager.
● Tan Boon Hock v PP [1979] 1 MLJ 236 FC
o The High Court has jurisdiction to try all offences including offences under the Penal Code
committed within its local jurisdiction.
o 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.
● Husdi v PP [1980] 2 MLJ 80 FC
o 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.
● Dato Seri Anwar bin Ibrahim v PP [2010] 2 MLJ 312
o The right to a fair trial is of course a universal principle. It is inviolable. It has since been
fully developed in the common law practice including here, in Malaysia.
o 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. Section 51A of the CPC
has 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.
o 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
o It is common ground that no special provision has been made under the CPC or any other
laws in Malaysia that provide for the setting aside or quashing of a criminal charge on the
basis of the above complaints by the appellant.
o It is therefore acceptable that the said application by the appellant at the High Court was
correctly premised on the provisions of s. 5 of the CPC and the inherent jurisdiction of the
High Court. 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.
S. 278 of CPC – Judgment not to be altered
● No court, other than a High Court may alter or revise its judgement unless for clerical errors and
mistakes which can be rectified at any time before the court rises for the day.
● PP v Heng You Nang [1949] MLJ 285
o The court has no power to vary its judgement for criminal matters once the said
judgement has been pronounced and signed
● Ooi Sim Yim v PP [1990] 1 MLJ88
o S. 278 did not empower the judicial commissioner to alter his judgement after it was
recorded and delivered as it led to 2 interpretations of the same sentence. As such, the basic
principle of criminal justice should apply to adopt the favourable construction.
● Datuk Harun bin Haji Idris v Officer-in-charge, Pudu Prison [1981] 2 MLJ 72
o A superior court as a court of record has the inherent power to revise judgements to remedy
accidental mistakes but the altered judgement shall not be construed as an amendment of
the previous sentence.
● Mrs Thitapha Charoenchuea lwn Pendakwa Raya [2016] 6 MLJ 549
o Applied Lorraine Phylis Cohen.
o “Namun begitu, pada pendapat kami, penghakiman berganda yang wujud di dalam kes ini
tidaklah memberi kesan kepada kegagalan keadilan (miscarriage of justice) dan menyebabkan
prosiding rayuan ini terbatal.”
▪ However, the court opined that the double judgment that exists in this case does not
affect the miscarriage of justice which caused the appeal proceedings to be annulled
● Pendakwa Raya v Chandrasegaran Sunthiran [2020] MLJU 338
o Alteration of a writ of commitment is not allowed in the following circumstances:
▪ A judgment in a criminal case consists of the important elements:
● a finding on the charge and,
● in the case of conviction, the nature and quantum of sentence.
▪ The exercise of the power to amend shall not in any way modify or alter the
judgment in the case in which the sentence has been awarded in as much as it
does not affect the nature or quantum of sentence.
o Application to amend writ of commitment dismissed.
Indian case law
 CPC was modelled on the Indian Code of Criminal Procedure 1882 (Indian CCrP)
 Hence, Indian case law on the interpretation of the similar provisions (in pari materia) serve as a
useful guide.
 Yeap Hock Seng @ Ah Seng v Minister of Home Affairs, Malaysia [1975] 2 MLJ 279
o The court referred to the S.491 of the former Indian CPC (now replaced by the Indian
CPC 1973 which omits this section) by virtue of S.365 of CPC “"The High Court may
whenever it thinks fit direct…” in view of the fact that the complaint now made by the
applicant purports to be one of a breach of his fundamental right of personal liberty under the
Constitution and this application must of necessity be made both under the procedural
provisions of the Criminal Procedure Code and Article 5(2) of the Constitution which must
be read together with its enforcement provision enacted in section 25(2) and paragraph 1 of
the Schedule to the Courts of Judicature Act, 1964. section 365 of the Criminal Procedure
Code must now therefore be read, in my view, in this light and as modified accordingly by
the application of the provisions of Article 162(6) of the Constitution.
o The court had also referred to several Indian cases in deciding this case which relates to
habeas corpus.

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Criminal Procedure Law I

CRIMINAL PROCEDURAL LAW

Applicable law for Criminal Process

Criminal Procedure Code

CPC of the FMS 1935 CPC

Third Schedule Second Schedule

Non seizable offences

Summons Case vs Warrant Case

Investigation, Inquiry, Trial

S.5 of CPC: Laws of England, when applicable

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