HIGH COURT TRIALS & TRIALS UNDER ESCAR

CONTENTS: 1. HIGH COURT TRIALS. 2. TRIALS UNDER ESSENTIAL(SECURITY CASES) REGULATIONS 1975. 3. TRIAL PROCEDURES IN DIFFERENT COURTS.
RAVINDRAN KUNJAN 2

1. HIGH COURT TRIALS

Consent of PP must be obtained for a case to be prosecuted in the High Court s 177A CPC; High Court has power to conduct trial proceedings for children s 117 Child Act 2001, except ss 96 & 97;

 Commencement of trial s 178

CPC ( same as ST - s 173 CPC )

S 178(1) CPC A appears / brought before HC and asked if PG of offence charged;

Law relating to reading & explaining charge to A is similar to ST ie interpreter, language to be used etc;

S 178(2) CPC plea of guilty shall be recorded & A may be convicted thereon;
but before PG recorded court shall ascertain that A understands the nature & consequences of his plea & intends to admit w/o qualification, offence alleged against him;

 PROCEDURE IF A PG:

P submits brief facts ( practice rule as no procedure provided ); A will be asked if he admits to brief facts & wishes to PG. Plea must be unreserved, unqualified and unequivocal; ( A must understand nature & consequences of the guilty plea ); Guilty plea accepted must be recorded & court may convict A; Before sentence is passed, defence may submit plea of mitigation, followed by P with any aggravating factors; Court shall pass sentence according to law s 183 CPC;

 CASES:
LEE WENG TUCK:
SC held allowing appeal, that a plea of guilty must be valid & unequivocal & safeguards to follow are: (a) court must ensure that A himself who wishes to PG; (b) understands nature & consequences of plea; (c) that A intends to admit w/o qualification offence alleged against him; (d) in capital cases, validity of plea must first be established before plea said to be unequivocal; issue a question of mixed law & fact; In capital cases, J has discretion to permit A to change his plea at any time before sentence, but must be exercised judicially & on valid grounds;

Settled Law that J can entertain application by A to withdraw his guilty plea at any time before sentence. Cases: Sam Kim Kai; Jamalul Khair;

Tang Hee Hing:

SC ordered retrial as plea doubtful;

Dat ak Tuni:
Held: Order set aside as Sessions J wrong to order A be detained in mental hospital; should have proceeded to take plea from A. Notwithstanding if A refuses to plead / does not plead / if claims to be tried, court shall proceed to try case s 178(3) CPC; Or if As guilty plea is unreserved, unqualified or unequivocal, the court shall not accept the guilty plea, but proceed to try the case.

 Prosecutions Case:

S 179(1) CPC - P shall open case & state nature of offence & evidence by which proposes to prove guilt of A; Norfaisal: Mandatory to open case; fatal if failed to do so; S 179(2) CPC Examination of witnesses (EIC/X/Re ); If no more witnesses, P will close its case & offer W to defence; Defence may make a submission of no case to answer followed by a reply from P; but court has discretion to refuse such submission if Ps case very strong; Chong Boo See;

Procedure after conclusion of Prosecutions case.

S 180(1) CPC provides when Ps case concluded, court shall consider whether P has made out a prima facie against A; S 180(2) CPC if no prima facie case, court shall record/order acquittal; S 180(3) CPC if prima facie case made out, then defence called; Test: (prima facie case: P has adduced credible evidence proving each ingredient which if unrebutted/unexplained would warrant a conviction - s180(4) CPC same as s 173(f) & s 173(h)(iii) CPC);

Issue: What Standard of Proof court should adopt at end of Prosecutions case in determining whether to call A to enter his defence or not.

Pre Haw Tua Tau: General rule was that P had to prove its case beyond reasonable doubt;
{PC stated at the end of Ps case, A may be acquitted if facts adduced by P are inherently incredible or the facts, though not inherently incredible had not established the ingredients of the alleged offence. Thus, a prima facie case means that the facts were not inherently incredible and had proved the the ingredients of the alleged offence}

Cases that followed this approach: Munusamy; Junaidi ( minimum evaluation ); Lee Eng Kooi; Tan Boon Kean (maximum evaluation); Arulpragasan held that court must be satisfied that P had
established a prima facie case before calling defence;

CONTD: Prima facie Case:

Sukumaran Sundram restatement of Haw Tua Tau where P has made out a prima facie case if evidence
is not inherently incredible; facie case;

Subramaniam a/l Arumugam FC refused to be involved in intellectual discoursed of meaning of prima

Khoo Hii Chiang retained HTT ( maximum evaluation ) approach; Arulpragasan Beyond reasonable doubt test; Mohd Amin b Mohd Razali evidence adduced is free from reasonable doubt,uncontradicted & proving each & every essential ingredient of the offence which if unrebutted would warrant a conviction of
A;

Looi Kow Chai Correct test made out u/s 180 CPC (maximum evaluation); further held that by subjecting
Ps evidence to maximum evaluation did not mean that P had to prove case beyond reasonable doubt at this stage;

DS Anwar Ibrahim (No:3) a maximum evaluation of the credibility of witnesses must be done at the

close of Ps case before the court can rule that a prima facie case has been made out in order to cal for the defence. But Gopal Sri Ram concluded, on this point, the above passage correctly states the law as it stands, made it clear that P need not prove its case BRD at the close of Ps case & whether it has done so, is a question to be dealt with at the close of the whole case.

CONTD: Prima facie case :

Balachandran: FC followed Looi Kow Chai that court must

apply maximum evaluation principle in evaluating Ps case whether made out a prima facie case; Sidek b Abdullah: though disagreed with maximum evaluation but was bound to follow precedent in Balachandran & Looi Kow Chai enunciated by Arulpragasan ; Chong Chai: approved Low Kow Chai soon after Sidek; Subsequently, before s 180(4) CPC came into effect, HCs in Chong Chai & Mohan Dass a/l Ganesan applied the maximum evaluation principle in determining BOP & SOP by P in making out a prima facie case;

 Amended Charge:

Sidek b Abdullah & Mohan Dass a/l Ganesan: P failed to establish a prima
facie case for original charge of selling cannabis & murder( s302 PC) respectively; but P succeeds to make out a prima facie case on amended charges of possession of cannabis & culpable homicide (s304(a) PC).

 Defences Case :

S 181(1) CPC D may open case; but not same as P; Proceed to question W; P will X; D will Re; Same as 174(b) CPC ST; Court will inform (practice rule) 3 electives: (i) remain silent w/o adverse criticism; (Low Kow Chai: COA stated that prima facie test is as in Dato Mokhtar Hashim maximum evaluation; Balachandran: FC stated if A remained silent convict only if prima facie evidence is beyond reasonable doubt;) (ii) give unsworn evidence in the dock w/o subject to cross examination; (iii) to give sworn evidence cross examination allowed s181(1) CPC; D can examine other Ws if present s181(2) CPC; D can make closing submissions s181(1) CPC; S182 CPC allows P right to reply to Ds submission;

 Procedure at Conclusion

of Trial

Court shall consider all evidence adduced & decide if P has proven case Beyond Reasonable Doubt s 182A CPC; If YES: find A guilty & convict A thereon; If NO: record an order for acquittal. S183 CPC court shall pass sentence according to law.

 Trials under Essential (Security

Cases) Regulations 1975 [ESCAR] Regulation 2 ESCAR two types of

security offences: (i) offences under ss57 to 62 ISA 1960; (ii) offences under any written law opined & certified by AG to be security offences; eg. S.379 PC theft of military secrets.

Reg.5 ESCAR: Court of

Competent Jurisdiction:

High court or appropriate lower courts but not court for children; Reg.3(3) ESCAR provides that if A <18yrs/a juvenile & is charged w a security offence, A cannot be tried in a Juvenile Court, but may in HC / appropriate subordinate court;

Reg.3(1)ESCAR:

Provisions on procedure in ESCAR will OVERRIDE any other inconsistent law; BUT IF ESCAR SILENT, then ordinary procedure, eg. CPC, will continue to apply;

Lim Hang Seoh:

Appeal by 14yr old sentenced to death u/s 57 ISA that he cannot be sentenced to death u/s 16 JCA; BUT FC held Reg.3(3) ESCAR overrides JCA; Later Agong commuted to detention until 21yrs at Henry Gurney. PP v The Offender: Held: Approach where 14 yr old convicted 5yrs/10 strokes different as DDA does not override JCA.[ see s12; s12(3) & s15(2) JCA;

However doubt if this applies in cases under ESCAR.

Reg.11 ESCAR:

Commencement of Trial
Reg.11(1): ESCAR trials shall begin with charge read & explained & whether A pleads guilty or claims trial; Reg.11(2): A PGs must understand nature & consequences of his plea; Reg.11(3): A PNG; Court shall proceed to try case.

Reg.12 ESCAR: Opening

Case by Prosecution

Reg.12(1): P shall open its case & may state nature of offence( Not mandatory as in HC u/s179 CPC); Reg.12(2):Examination of witnesses as in summary trials & HC trials;

Reg.13 ESCAR: Procedure

after conclusion of Ps case

After P closed its case, court shall order A to enter his defence (mandatory; but see Sihabduin b Hj Salleh); Reg.3(1): Defence may submit no case to answer; P will offer to D, as a rule of practice, persons whose statements taken but not called as witnesses; After submissions, P will reply; Issue of prima facie case: not provided & not required under Reg.13;

Reg.17 ESCAR: Provides that court will

decide on guilt /innocence of A only at conclusion of Ds case after considering all evidence of P & D
This raises issue of if prima facie case need to be established before defence is called; if affirmative THEN what is the standard / test before defence is called; Johnson Tan Han Seng: FC held trial judge was wrong to acquit A at end of Ps case as Reg. 13 & 17 ESCAR makes it mandatory for defence to be called; Sihabduin: similar as Johnson Tan ( Suffian LP also) departed & said prima facie case need to be established in security trials before defence is called; Mohd Amin b Mohd Razali & 28 ors: FC followed Johnson Tan; preferring the dissenting view in Suhabduin.

Issue of Standard of Proof Dato Mokhtar Hashim: Applied test in Haw Tua Tau where if the evidence of

P is not inherently incredible then P has established prima facie case; But in Nordin b Johan: FC seem to apply beyond reasonable doubt test; Jamali b Adnan: HC applied Beyond reasonable doubt test & said if evidence of P un-rebutted, it warrants a conviction; It is submitted that the test should be that laid down in Balachandran: FC held that P has made out a prima facie case which if un-rebutted would convict A.

Reg.14;15;16;17 ESCAR:
Defences Case

Reg.14(1): A may open his case; Reg.14(2): 3 same electives for A; Reg.15: P shall have right to reply on whole case; Reg.16: Power of court to question or recall witnesses; Reg.17: Decision of court at conclusion of trial; The court shall decide on the guilt or innocence of A only at the conclusion of the defences case after considering all the evidence;

Reg.18 : ESCAR: Finding &

Sentence

Reg.18(1): If the court finds accused not guilty, it shall record & order acquittal. Reg.18(2): If guilty, convict & sentence according to law. After conviction, before sentence, D can make plea of mitigation & P can reply.

OTHER PROVISIONS OF ESCAR: Reg.8;9;10;19;20;21 & 23

Reg. 8: Venue :P may, at any time

before trial of a security case, by notice apply for transfer of the case while the court to which it is transferred must be competent & have jurisdiction to try not withstanding the local limits of its jurisdiction.

Reg.9: Bail [ Reg. 27]

Reg.9 states that bail must be granted to the accused in a security case, but may be allowed where the offence is not punishable with death or life imprisonment if the accused satisfies the court that he should be granted bail. Besides, Reg.27 provides that if the prosecution appeals against acquittal, the court may issue a warrant of arrest for the accused to be brought before the court and may commit him to prison pending disposal of appeal or grant bail to him.

Reg.10: Joinder of Offence & Joint Trial

Reg. 10 provides that any number of security offences against any person may be tried at the same hearing notwithstanding these offences are not of the same kind. It further provides that any number of accused persons may be tried together and they shall be tried together where the PP gives a certificate that it is a case fit for a joint trial.

Reg.19 & 20: Witnesses

Reg.19 provides that evidence of witnesses may be given in a special manner, example, in camera, while Reg.20 allows witnesses to identify the accused or other persons or exhibits without disclosing the identies of the witnesses.

Reg.21: Admissibility of statements & documents.

Reg.21(1) deals with the admissibility of oral & written statements of the accused where it provides that statements of the accused are still admissible if they are made to any person[Reg.21(1)(a)] and whether or not a caution has been administered [Reg.21(1)(e)]. Furthermore, Reg.21(3) provides that the court has the discretion to admit even hearsay evidence & secondary evidence. This is a relaxation of the strict principle & rules of procedure which are applied in normal trials( not security cases).

Reg.23: Interception of Communication.

Reg.23 allows the prosecution to order interception of communications during investigations, e.g. wiretapping; opening of mail & parcels, etc.